Obamacare, Freedom, And The Joy Of Doing Nothing

[JerseyGuy]

Since there's been surprisingly little discussion here of this week's Supreme Court news...

The Irreconcilable Differences of a Health-Care Debate
By Charles P. Pierce, Esquire


THE ENCHANTED ISLANDS OF CHILDREN'S PHILOSOPHY /// Consensus has broken down entirely, and the Supreme Court decision will solve nothing so long as you've got Michele Bachmann calling the president a health-care dictator.

At one point in the proceedings on Tuesday, as I was wandering among the huddled masses on the steps of the Supreme Court building, wherein the last "shred of freedom" (according to Wisconsin's dim-bulb senator, Ron Johnson) was hanging by a veritable thread, a group of high-school kids wearing nametags that identified themselves as belonging to "Christian Discoveries" arrived on the sidewalk. Apparently, they had just concluded a tour of the Capitol across the street. They were quickly formed up as a kind of cheering squad by a doughy chap in a button-down shirt and the kind of buzzcut John Goodman wears in The Big Lebowski. As they began to chant — another variation of the Hey, ho... theme, which was sort of the Chuck Berry riff of Day Two's public protests — the putative choirmaster rolled up on me.

"SEE? SEE THESE KIDS? IF YOUR SIDE WON, THESE KIDS WOULDN'T EVEN BE ALIVE!"

What, exactly, I asked him rather mildly, was my "side"? And how would either side of this argument have prevented these otherwise healthy white Christian adolescents from being born? Am I Clarence The Angel?

"OH," he replied, "I THOUGHT YOU WERE ONE OF THEM, YOU KNOW, A PRO-OBAMACARE."

Not exactly sure how he came up with that. Could have been the hair. Or the beard. Or the denim jacket with the Kamloops Blazers pin. But, somehow, I had been run through this man's mental ideological abacus and come out the other side as someone who, if he had his way, would have strangled all the Christian Discoverers in their cribs. And that was pretty much all the tribalism I could stand for one day.

Nothing is going to be solved by this decision. (It's possible that the court could roll back all the relevant precedents to the sort of pre-New Deal utopia favored by the Koch and Paul families, but I just don't think Chief Justice John Roberts is in for that much revolution on his watch. This comes strictly from the elbows, of course. For more informed legal speculation, I'd refer you to the indispensable Dahlia Lithwick. And Jon Cohn of The New Republic is good today on the nexus of law and health-care policy.) That's the hilarious fact hiding in all the superheated rhetoric and ballpark journalism surrounding the case: If the law is upheld, the political assaults on it will continue, night and day, in a thousand different places. Even in the 1990's, when the Republican party embarked on a campaign to de-legitimize a Democratic president that ended up with a pursuit of that president's penis, both parties agreed that something had to be done about the state of the American health-care system. That happens to be why we first encountered the individual mandate. It was the critical part of the conservative, market-based alternative to what had become known as "Hillarycare." No Republican that I recall — and certainly nobody at the Heritage Foundation, where the idea originated — expressed any grave doubts about its constitutionality. Up here in Massachusetts, where we also have a state constitution, nobody lawyered up on Willard Romney when he got his mandate-based health-reform bill through the state legislature. There was no great clamoring about FREEEEEEEDOOOOMMMMMMMMM! In fact, in the 1990's, there was that rarest of all things — a national consensus that health-care reform was an interlocking network of national issues that required a national solution. That's why even zombie-eyed granny-starver Paul Ryan voted for George W. Bush's expansion of Medicare, even though there was no real mechanism in place to pay for it.

That consensus has broken down entirely. The Republican party has hitched itself to a position whereby the national government has no role to play in ameliorating the problems of the uninsured, or even of the underinsured. Listening to some of the leading lights of conservative opposition on Tuesday was what it must have been like to be in Ireland in 1921, during the debate in the Dail over the treaty that ended the Anglo-Irish War. One side argued realpolitik. The other side argued that the document betrayed a mystical bond between the Irish people and an Irish Republic that had been declared in 1916 but did not actually exist. One side argued facts. The other side argued faith. One side was arguing politics. The other, some sort of secular religion. They are irreconcilable concepts. Reconciling them is beyond politics.

This is what we have now. One side of the argument over an insurance-friendly health-care reform bill has moved their position into the realm of theological argument. It isn't just Senator Johnson talking darkly about "the last shred of freedom", either. (Johnson, it should be noted, is worth about $23 million. His personal health-care plan could afford hiring people to be sick for him, if he so chose.) His colleague, Jim DeMint, told a rally sponsored by Americans For Prosperity that the fight will go on no matter how the court rules.

"All of us hope that the Supreme Court will look at the Constitution, use common sense and throw this whole bill out," DeMint said at the rally. "But if they don't, it is our job to make sure that that bill is never implemented."

And why must the fight go on? The Girl With The Faraway Eyes had that question answered.

"This is the day we have been waiting for," Bachmann told a crowd. "We have not waved the white flag of surrender on socialized medicine...In the future, you see, we will not be electing a president.... If the health care law stands, we will be electing a health care dictator."

A "health-care dictator." Seriously? From a member of Congress? And a bonafide political leader?

If we were still all fighting this out in the realm of actual politics, and not on the Enchanted Islands of Children's Philosophy, the Republicans actually might be in a bit of a box politically, if the Supreme Court strikes down the law. (That law, you may recall, was largely a Republican solution in the first place.) They felt that way themselves, for a while. That's why you used to hear about "Repeal and Replace." That's been obsoleted — as the technocrats used to say — by the notion of "Repeal and LIBERTY (!)" The best they have is to make sure that the manufacturer of the next Dalkon Shield is protected from pesky law suits by the pesky relatives of the pesky dead people that his product killed, and to develop within the health-insurance company the same kind of regulatory regime that made the credit-card industry so very, very popular with its customers. Anything else, they simply will not abide, and it won't matter a damn if the ball in the roulette wheel in Anthony Kennedy's head drops into the slot marked, "Uphold."

Tort reform. Portability. And that's it. That's the plan, because those are solutions that the party's ginned-up base will swallow and that the party's corporate masters will allow, because those two mock solutions will make the party's corporate masters even more money. Hell, on Tuesday night with Jay Leno, Willard Romney, the man who once held the Republican solution to the national problem of national health-care in his hands, even bailed on people with pre-existing conditions. The old political saw has it that you can't beat somebody with nobody. But, we're finding, people who believe in something can always lose to people who believe in nothing.

The Supreme Court’s Dark Vision of Freedom
The court’s conservatives apparently believe in the land of the free. Circa 1804.
By Dahlia Lithwick|Posted Tuesday, March 27, 2012, at 10:47 PM ET



Justice Antonin Scalia (left) had pointed exchanges with Solicitor General Donald Verrilli during Tuesday's arguments regarding the Affordable Care Act's individual mandate

The fight over Obamacare is about freedom. That’s what we’ve been told since these lawsuits were filed two years ago and that’s what we heard both inside and outside the Supreme Court this morning. That’s what Michele Bachmann* and Rick Santorum have been saying for months. Even people who support President Obama’s signature legislative achievement would agree that this debate is all about freedom—the freedom to never be one medical emergency away from economic ruin. What we have been waiting to hear is how members of the Supreme Court—especially the conservative majority—define that freedom. This morning as the justices pondered whether the individual mandate—that part of the Affordable Care Act that requires most Americans to purchase health insurance or pay a penalty—is constitutional, we got a window into the freedom some of the justices long for. And it is a dark, dark place.

It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm—even though, one day that will describe all of us. Or as Justice Antonin Scalia later puts it: “These people are not stupid. They're going to buy insurance later. They're young and need the money now.” (Does this mean that if you are young and you pay for insurance, Scalia finds you “stupid”?)

Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … [is] a result of the social norms to which we've obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don't obligate yourself to that.”

Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.”

Freedom is to be free from the telephone. Verrilli explains that “telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize.” To which Justice Scalia is again ready with a quick retort: “Only if you make phone calls.” Verrilli tries to point out that “to live in the modern world, everybody needs a telephone,” but that assumes facts not in evidence.

Freedom is the freedom not to join a gym, not to be forced to eat broccoli. It’s the freedom not to be compelled to buy wheat or milk. And it’s the freedom to purchase your health insurance only at the “point of consumption”—i.e., when you’re being medivaced to the ICU (assuming you have the cash).

Some of the members of the court find this notion of freedom troubling. Justice Ruth Bader Ginsburg notes that: “Congress, in the '30s, saw a real problem of people needing to have old age and survivor's insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don't have the healthy in it, there's not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute. There was a big fuss about that in the beginning because a lot of people said—maybe some people still do today—I could do much better if the government left me alone. I'd go into the private market, I'd buy an annuity, I'd make a great investment, and they're forcing me to paying for this Social Security that I don't want. But that's constitutional.”

Justice Sonia Sotomayor invokes government tax credits for “solar-powered homes and fuel-efficient cars.” Paul Clement, representing the 26 states challenging the health care law, replies to explain how the Framers would have thought about taxing carriages. The analogy of taxing carriages probably makes perfect sense to the court’s conservatives, who likened GPS devices to tiny constables in this year’s GPS case. We seem to be talking across the centuries once again in this room, and the days of leeches are looking pretty darn dreamy for some. Sotomayor says, “There is government compulsion in almost every economic decision because the government regulates so much. It's a condition of life.” But one gets the sense that not everyone acknowledges the reality of that life, much less approves of it.

Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance—do you think there's a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?”

But we seem to want to be free from that obligation as well. This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

[Bubba]

Just because something may be good policy doesn't mean it isn't unconstitutional. Personally, I don't think the Federal mandate is, even though from an insurance perspective it may very well make sense. Insurance is regulated by the states and cannot be purchased across state lines, therefore, the Federal government should not have the power to mandate coverage. That power should only reside in the states.

[JerseyGuy]

The political ramifications of this are equally interesting. There are a number of pundits, liberal and conservative, who are arguing that a total defeat to the bill dealt by the conservative SCOTUS majority might actually help Obama's reelection chances. That may very well be the case.

[Coydog]

I always thought arguing health insurance reform or civil liberties under the Commerce Clause was a bit strange, but that is where Congress has traditionally found the most flexibility in constitutional interpretation to support regulation. In terms of the health insurance mandate alone, I am somewhat hesitant to give Congress the power to force the purchase of private products for fear of this power expanding in unexpected ways. The income tax was initially sold as a tax on corporate income where only 2% of the wealthiest citizens would be subject to it. Fast forward to today and we find personal income taxes now exceed corporate taxes.

If the mandate holds, I bet they find a way to very narrowly characterize the circumstances and market conditions where such a mandate could apply (this seems to be a possible path for Kennedy or even Roberts to uphold). If found unconstitutional, it effectively takes "repealing ObamaCare" off the table for the GOP and may very well put the public option back into the national discourse. The mandate is a conservative idea and the Dems could argue "we tried it your way and it didn’t work."

[steamboat1]

“Fathom the odd hypocrisy that Obama wants every citizen to prove that they are insured, but people don’t have to prove they are citizens.” ~Ben Stein

[Coydog]

“Fathom the odd hypocrisy that Obama wants every citizen to prove that they are insured, but people don’t have to prove they are citizens.” ~Ben Stein

"A short while ago, I said in a public forum that while I did not doubt that in a society as rich as ours, no one should be denied health care, and that health care was a right, I still had some questions about the administration’s plan. This had been my feeling for all of my life, i.e., that health care was a right, and that if necessary, it must be paid for by the taxpayers if some people could not afford it." ~Ben Stein

Of course, Ben Stein never actually said the first quote - Ben Stein, Snopes

[Bubba]

“Fathom the odd hypocrisy that Obama wants every citizen to prove that they are insured, but people don’t have to prove they are citizens.” ~Ben Stein

"A short while ago, I said in a public forum that while I did not doubt that in a society as rich as ours, no one should be denied health care, and that health care was a right, I still had some questions about the administration’s plan. This had been my feeling for all of my life, i.e., that health care was a right, and that if necessary, it must be paid for by the taxpayers if some people could not afford it." ~Ben Stein

Of course, Ben Stein never actually said the first quote - Ben Stein, Snopes

And, of course, health care for those who can't afford it is being paid now by the taxpayers. Next?

[Coydog]

“Fathom the odd hypocrisy that Obama wants every citizen to prove that they are insured, but people don’t have to prove they are citizens.” ~Ben Stein

"A short while ago, I said in a public forum that while I did not doubt that in a society as rich as ours, no one should be denied health care, and that health care was a right, I still had some questions about the administration’s plan. This had been my feeling for all of my life, i.e., that health care was a right, and that if necessary, it must be paid for by the taxpayers if some people could not afford it." ~Ben Stein

Of course, Ben Stein never actually said the first quote - Ben Stein, Snopes

And, of course, health care for those who can't afford it is being paid now by the taxpayers. Next?

Maybe we should try something like they did in Massachusetts where everyone is required to purchase insurance or pay a penalty. Low income folks can get government assistance, but you eliminate the freeloaders.

[madhatter]

“Fathom the odd hypocrisy that Obama wants every citizen to prove that they are insured, but people don’t have to prove they are citizens.” ~Some Other Guy

[Bubba]

“Fathom the odd hypocrisy that Obama wants every citizen to prove that they are insured, but people don’t have to prove they are citizens.” ~Ben Stein

"A short while ago, I said in a public forum that while I did not doubt that in a society as rich as ours, no one should be denied health care, and that health care was a right, I still had some questions about the administration’s plan. This had been my feeling for all of my life, i.e., that health care was a right, and that if necessary, it must be paid for by the taxpayers if some people could not afford it." ~Ben Stein

Of course, Ben Stein never actually said the first quote - Ben Stein, Snopes

And, of course, health care for those who can't afford it is being paid now by the taxpayers. Next?

Maybe we should try something like they did in Massachusetts where everyone is required to purchase insurance or pay a penalty. Low income folks can get government assistance, but you eliminate the freeloaders.

And if you do that at the state level, that's fine, as long as it meets the constitutionality of that state. But, when you do it at the Federal level, the concept has serious legal problems.

[Coydog]

Maybe we should try something like they did in Massachusetts where everyone is required to purchase insurance or pay a penalty. Low income folks can get government assistance, but you eliminate the freeloaders.

And if you do that at the state level, that's fine, as long as it meets the constitutionality of that state. But, when you do it at the Federal level, the concept has serious legal problems.

We shall see. I guess the government can force you to buy insurance as long as it's the right government.

So I wonder, wouldn't it be something if the Federal government simply gave the states incentives to locally implement RomneyCare health insurance mandates?

[shortski]

Maybe we should try something like they did in Massachusetts where everyone is required to purchase insurance or pay a penalty. Low income folks can get government assistance, but you eliminate the freeloaders.

And if you do that at the state level, that's fine, as long as it meets the constitutionality of that state. But, when you do it at the Federal level, the concept has serious legal problems.

We shall see. I guess the government can force you to buy insurance as long as it's the right government.

So I wonder, wouldn't it be something if the Federal government simply gave the states incentives to locally implement RomneyCare health insurance mandates?

Like they did with the 55MPH speed limit, helmet laws and on and on. Just put out the federal dollar carrot and watch all the asses follow it.
Follow the money.

[Bubba]

Maybe we should try something like they did in Massachusetts where everyone is required to purchase insurance or pay a penalty. Low income folks can get government assistance, but you eliminate the freeloaders.

And if you do that at the state level, that's fine, as long as it meets the constitutionality of that state. But, when you do it at the Federal level, the concept has serious legal problems.

We shall see. I guess the government can force you to buy insurance as long as it's the right government.

So I wonder, wouldn't it be something if the Federal government simply gave the states incentives to locally implement RomneyCare health insurance mandates?

Insurance has been regulated by the states and cannot even be purchased across state lines. That negates the interstate commerce claim, at least in my view of the constitution. Now, if Vermont or New York or Mississippi or wherever wants to make you buy health insurance and it's constitutional under that state's constitution, that's fine with me.

[Coydog]

Insurance has been regulated by the states and cannot even be purchased across state lines. That negates the interstate commerce claim, at least in my view of the constitution. Now, if Vermont or New York or Mississippi or wherever wants to make you buy health insurance and it's constitutional under that state's constitution, that's fine with me.

State lines really has nothing to do with it, see Wickard v. Filburn. The Commerce Clause has been so loosely interpreted that almost anything can be regulated by Congress no matter how tangential to actual interstate commerce.

Like they did with the 55MPH speed limit, helmet laws and on and on. Just put out the federal dollar carrot and watch all the asses follow it.
Follow the money.

Yep, that's how it gets done - expansion of powers by the power of the dollar.

If Kennedy does comes on board, I think it is possible the idea of a mandate would be struck down but the health insurance law is upheld because the mandate as specifically described in the law is not actually enforced - i.e. it is not really a mandate at all. This would be a way for the court to find a limiting factor without throwing out the actual law.

Anyway, this is the sort of legal theory I come up with after an awful day on a pancake flat SS and five or six LTs.

[Bubba]

Insurance has been regulated by the states and cannot even be purchased across state lines. That negates the interstate commerce claim, at least in my view of the constitution. Now, if Vermont or New York or Mississippi or wherever wants to make you buy health insurance and it's constitutional under that state's constitution, that's fine with me.

State lines really has nothing to do with it, see Wickard v. Filburn. The Commerce Clause has been so loosely interpreted that almost anything can be regulated by Congress no matter how tangential to actual interstate commerce.

Like they did with the 55MPH speed limit, helmet laws and on and on. Just put out the federal dollar carrot and watch all the asses follow it.
Follow the money.

Yep, that's how it gets done - expansion of powers by the power of the dollar.

If Kennedy does comes on board, I think it is possible the idea of a mandate would be struck down but the health insurance law is upheld because the mandate as specifically described in the law is not actually enforced - i.e. it is not really a mandate at all. This would be a way for the court to find a limiting factor without throwing out the actual law.

Anyway, this is the sort of legal theory I come up with after an awful day on a pancake flat SS and five or six LTs.

And that explanation right there shows why a narrow interpretation of the constitution is necessary unless, of couse, it is your intention to continue expanding the powers of the Federal government at the expense of the states and the people and overriding the 10th Amendment. We've been using the Commerce Clause since at least the New Deal to expand Federal powers and have gradually made the 10th Amendment meaningless. Unfortunately, the 10th Amendment states explicitly what this country was founded on - that power flows up from the people not down from government - and if we continue in the expansion of Federal power we will, eventually, reverse that founding principle.