“Exotically Countercultural”: The Unhappy Triumph Of The Marketplace
This objection to Obamacare’s individual mandate, by Jonathan Adler at the libertarian Volokh Conspiracy website, grabbed my attention:
“Virtually everyone” may acquire health care—but “virtually everyone” is not “everyone.” Most people may purchase health care at some point in their lives, but some will not. Some people will refuse to purchase health care for religious reasons. Some will not purchase health care because they are lucky enough not to need such care before a sudden death. Still others may decide not to purchase health care because they have chosen to remove themselves from commerce—consider a survivalist or other person who decides to live in a shack, growing their own food, and not engaging in commerce with others.
Consider Adler’s latter example: It strikes me that the vast majority of Americans would find the idea of “not engaging in commerce with others” to be exotically countercultural at best, possibly antisocial or even deviant. Such a reaction is symptomatic of the fact that the marketplace has long enjoyed pride of place in Americans’ moral psychology. “The chief business of the American people is business,” as President Calvin Coolidge famously said.
This ethos has made proper small-l liberals of us, hasn’t it? Americans have been taught by the libertarian right and the Clintonian middle to believe that a commercial relationship between nations—trade—is the only way to achieve lasting international harmony. At least before the great stock market crash of 2008, CEOs were like cult heroes in the popular imagination. From the pluckiness of Horatio Alger’s heroes to the theology of Joel Osteen, success in the marketplace has been seen as an outward confirmation of inward virtue and divine blessedness.
So it’s with some sense of schadenfreude that I see conservatives of the classical liberal variety chafing at the requirement to buy health insurance, calling it an attempt by Congress to “create commerce.” I’m fully aware of the contractarian basis for this objection: that a forced purchase is not a legitimate commercial exchange.
But the paleocon in me responds this way: This is the antitraditional bed you’ve made for us. Now lie in it.
By: Scott Galupo, U. S. News and World Report, March 27, 2012
“National Solutions To National Problems”: The Affordable Care Act Is Much More Than Politics
The law is a commonsense solution to our country’s broken healthcare system and is clearly constitutional. It eliminates insurance company abuses, makes coverage more affordable for seniors, families, and small businesses, and creates rules that stop insurers from denying care to the sick and jacking up premiums anytime they please.
The logic of the law is that we can make coverage more affordable and fair if everyone has insurance, including the young and healthy and those who don’t expect to get sick. That lowers costs by spreading the risk more broadly.
Our system is fundamentally out of balance. Many people don’t get the care they need, and others only get care at everyone else’s expense—and usually at an emergency room where services are far more expensive than at a doctor’s office. As a result, at least $43 billion in uncompensated care is provided every year, paid for by a $1,000 “hidden tax” in the premiums of every insured person in the country.
Today most people have insurance. Most of the 50 million uninsured want coverage but either can’t afford it or are excluded by insurers because of pre-existing conditions. When the law is fully implemented, families unable to afford coverage will get tax credits to put it within reach. The truth is that the individual responsibility provision, also known as the mandate, will affect only the 2 percent of Americans who have access to affordable coverage but refuse it. That’s what this fight is about: the 2 percent who reject rules that will allow the rest of us to get better, more affordable coverage.
The Supreme Court has consistently ruled that the Constitution gives Congress the ability to develop national solutions to national problems. If the court were to bow to political pressures to strike down the law, it would essentially put regulation of healthcare, which accounts for nearly 18 percent of our economy, beyond the reach of Congress. That is plainly absurd.
The case against the health law is an extension of a transparently partisan political mission to tear down this milestone law as a way to turn President Obama out of office in November. What the partisans selfishly refuse to acknowledge is that there is so much more than politics at stake.
By: Ethan Rome, U. S. News and World Report, March 26, 2012
“Clouded By Misperceptions”: Five Myths About The Health-Care Law
The Supreme Court will hear three days of arguments starting Monday on whether President Obama’s Affordable Care Act is constitutional. Twenty-six states have filed challenges to the health-care reform law. The main issue, on which the lower courts have split, is whether Congress had the power to pass this law under the Constitution’s commerce clause. The answers to that and other questions are clouded by misperceptions about the law itself. Let’s debunk them.
1. The “individual mandate” forces everyone to buy health insurance.
The law states that, beginning in 2014, individuals must ensure that they and their dependents are covered by health insurance. Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 21/2 percent of anyone’s annual taxable income.
A large majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.
The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.
2. Only the individual mandate is at stake in the Supreme Court case.
The mandate is not a stand-alone provision that can be invalidated without affecting the rest of the law. In fact, it is merely an ancillary measure that makes two more-fundamental provisions of the law workable: “guaranteed issue” and “community rating.”
A significant problem with our nation’s health-care system has been that insurance companies can reject applicants who have had health problems, including minor ones. The guaranteed issue provision prevents companies from turning down applicants because of their medical conditions or history. The community rating measure bars insurers from charging higher premiums to those who have had illnesses or accidents.
Experience in the states has shown that if people can’t be turned down for health insurance, there must be an incentive for them to sign up for it before they have an accident or illness. The individual mandate was enacted to ensure that the central, nondiscrimination provisions can work as they were intended — to provide everyone access to affordable health care, regardless of their medical history or current conditions.
If the court were to strike down the mandate, the law’s popular provisions on preexisting conditions would fall as well.
3. If the court upholds the health-care law, it means Congress has the power to require Americans to purchase any product.
The health-care case is a test of Congress’s power under the Constitution to regulate commerce among the states. One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.
The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim would not justify any law that required Americans to buy products such as cars or broccoli.
The mandate does not force people into commerce who would otherwise remain outside it. Instead, it regulates the consumption of health care, an activity in which virtually everyone will engage. Right now, people who go without insurance often shift the costs of their health care to other patients and taxpayers. That situation is different from what happens with any other type of purchase.
Would the government’s defense of the mandate also support a law requiring Americans to buy broccoli or a car? The answer is a simple and emphatic no.
4. The law is socialist.
Actually, the opposite is true. The principal reason the Affordable Care Act has been called unprecedented is that it declines to follow the New Deal approach of having a monolithic government agency be the single provider of a good or service. Instead, the law adopts a new approach, one conservatives have long supported, of using providers in the private market to deal with social and economic problems.
In defending his “Massachusetts mandate” as a conservative model for national health-care legislation, former governor Mitt Romney editorialized in 2009 that by imposing tax penalties on people who choose to remain uninsured, an individual mandate “encourages ‘free riders’ to take responsibilities for themselves rather than pass their medical costs on to others.” And, as Romney noted, conservatives have never been inclined to favor freeloaders.
5. The law is an extraordinary intrusion into liberty.
Liberty is always said to be fatally eroded, it seems, when great advances in social legislation take place. The lawyers who urged the Supreme Court to strike down the Social Security Act of 1935 argued that if Congress could provide a retirement system for everyone 65 and older, it would have the power to set the retirement age at 30 and force the very young to support everyone else.
It was said that if Congress had the authority to create a minimum wage of $5 an hour, it would also be a regulation of commerce to set the minimum at $5,000 an hour. In 1964, critics argued that if Congress could tell restaurant owners not to discriminate on the basis of race, it could tell them what color tablecloths to use. None of these things happened.
Nothing in the health-care law tells doctors what they must say to patients or how those patients are to be treated. It only requires people to either have insurance coverage or pay a modest tax penalty.
Nearly 75 years ago, a Supreme Court dominated by appointees of conservative presidents rejected the challenge to the constitutionality of the Social Security Act. The words of Justice Benjamin Cardozo’s 1937 opinion are relevant today:
“Whether wisdom or unwisdom resides in [the statute in question] it is not for us to say. The answer to such inquiries must come from Congress, not the courts.”
By: Walter Dellinger, The Washington Post, March 23, 2012
What If “The Bogeyman Disappears”: How High Court Ruling Could Backfire On GOP
At WaPo’s ‘The Fix,’ Aaron Blake has an interesting read, “On health care, Supreme Court loss could be electoral win.” Blake believes the GOP’s glee about the upcoming Supreme Court ruling on the ACA could backfire — in an unexpected way. Blake explains:
…Some Republicans are worried that their big challenge to Obama’s health care law could backfire come election time.Obama, of course, does not want to see his signature initiative overturned by the Supreme Court, which holds oral arguments on the bill next week and should render a decision by late June. And Republicans who have long railed against the bill would certainly be overjoyed to see the bill struck down.
But in an electoral milieu (yes, we just used that word) in which winning is often based more on voting against something rather than voting for it, losing at the Supreme Court may be the best thing that could happen to either side — and particularly Democrats.
“In a perverse way, Obama is helped if it is overturned, because then he can use it to rally his base,” said GOP pollster Glen Bolger. “If it is not overturned, then Republicans have a frying pan to bash over the Democrats’ head…”
That last point may be a bit of a stretch. It’s just as easy to imagine the GOP looking like whiners, grumbling about a pro-Republican court saying the law is sound. Plus it may be overstating the intensity of opposition to the mandate — many who don’t like it may be willing to at least give it a try, especially if the High Court says it’s OK.
In addition, don’t forget that polls indicate many who opposed the bill wanted a stronger role for government. Asked “What, if anything, do you think Congress should do with the health care law? Expand it. Leave it as is. Repeal it.” in a Pew Research poll conducted March 7-11, 53 percent said “expand it” (33 percent) or “leave it as it is” (20 percent), with just 38 percent supporting repeal.
Blake is on more solid ground, however, in arguing:
Republicans already hate the law, and if it gets struck down, there’s nothing to unite against. Obama may pay a price from his political capital for enacting a law that is eventually declared unconstitutional, but all of a sudden, the bogeyman disappears, and the GOP loses one of its top rallying cries.The Democratic base, meanwhile, would be incensed at the Supreme Court, which has generally tilted 5-to-4 in favor of conservatives on contentious issues, and could redouble its efforts to reelect Obama so that he could fill whatever Supreme Court vacancies may arise.
Blake argues less persuasively that Republicans will still put energy into repealing the law, even after the Supreme Court’s ruling. Seems to me that this would be a huge loser for the GOP. The public was tired of the legislative debate a long time ago. I would agree with Blake’s assessment, however, that Dems may “have more to gain than Republicans do” in terms of the election — even with an adverse ruling.
By: J. P. Green, The Democratic Strategist, March 23, 2012
“An Irreducibly Tangible Question”: What Happens To The Uninsured If Health-Care Reform Is Dismantled?
When the Republican presidential candidates talk about health care, the discussion usually moves quickly toward the philosophical and the abstract.
Take Rick Santorum’s appearance at the Christian Liberty Academy last weekend in this Chicago suburb. Before a raucous crowd, the former senator from Pennsylvania portrayed President Obama’s health-care-reform law as an “affront to freedom.” In Santorum’s telling, the plan is not so much an attempt to reshape the health care system as the worm on a line meant to hook Americans on Big Government. “What tribute won’t you pay to the government if they can promise that if you give them more they will … take care of you?” he asked dramatically.
There’s no question that an ideological chasm over Washington’s proper role in health care separates Democrats and Republicans. And there’s no doubt that some Democratic strategists believe that average Americans will grow more tolerant of activist government if they see it providing them more direct benefits, such as health insurance.
But the debate over health care reform — which will intensify again next week as the Supreme Court hears oral arguments on challenges to the law’s mandate on individuals to buy insurance — involves more than competing philosophies or political strategies. At its core, it raises an irreducibly tangible question: what, if anything, to do about the nearly 50 million Americans who today lack health insurance.
Those millions of uninsured rarely intrude into the promises from GOP congressional leaders and the party’s presidential field to defend liberty by repealing Obama’s plan. But ignoring them doesn’t make them go away. If the 2012 election rewards Republicans with enough leverage in Washington to erase Obama’s initiative, they will face the choice of finding an alternative means to expand coverage or allowing the number of those without insurance to grow, with far-reaching consequences not only for the uninsured but for those with insurance as well.
Without some policy intervention, there’s little question that access to health insurance will continue to decline. Since 2000, the number of the uninsured has jumped from 36.6 million to 49.9 million, about one-sixth of all Americans.
That number would have been even higher if an additional 20 million people over that period had not obtained coverage through Medicaid and the Children’s Health Insurance Program. This growth partially offset the unrelenting erosion in employer-based care: The share of Americans obtaining coverage from their employer has declined every year since 2000, in good times and bad.
Earlier this month, the Congressional Budget Office forecast that, absent the new health-care law, the number of uninsured would rise to 60 million by 2020. That large a pool of uncovered Americans would create enormous strain for the health-care system.
The uninsured themselves would feel the most immediate effect, of course — studies show they are much more likely than those with coverage to defer or entirely forego needed care. But such an increase would also produce upward pressure on premiums for the insured as providers, especially hospitals, raise prices for those with coverage to offset the cost of uncompensated care to those without it. “The idea that repeal [of health-care reform] is somehow going to lower your premium is folly,” says Len Nichols, director of George Mason University’s Center for Health Policy Research and Ethics. More likely, he argues, repeal would increase premiums.
Obama’s health-care law, whatever its other virtues or flaws, represents a serious effort to break this cycle. CBO, echoing earlier projections, estimated last week that it would cover 33 million of the uninsured. No Republican has offered a plan to cover anywhere near so many. In 2009, the Congressional Budget Office estimated that the principal House Republican alternative to Obama’s proposal would cover only 3 million of the uninsured.
Both Santorum and Mitt Romney have proposed unspecified tax credits to cover some of those without coverage. Douglas Holtz-Eakin, president of the center-right American Action Forum, notes that Republicans believe that allowing interstate sale of insurance plans that offer more bare-bones coverage will reduce premium costs and expand access. Even so, he acknowledges, because so many of the uninsured have meager incomes, any tax credit big enough to meaningfully expand coverage still requires “a lot of money.”
But Republicans are proposing to shrink, not increase, federal health-care spending. Both Romney and House Republicans want to convert Medicaid into a block grant and cut federal spending on the program about in half by 2030. Even if those cuts provoked greater efficiency, the Urban Institute has estimated they could swell the number of uninsured by 14 million to 27 million beyond the effect of repealing Obama’s coverage expansion.
Leading Republicans almost all portray the health-care debate as a philosophical turning point between a limited central government and one they see as overweening and even tyrannical. But the debate also represents a much more practical turning point, between a society that attempts to approach universal health coverage and one that accepts millions of people living without insurance — with unavoidable costs for the uninsured and the insured alike.
By: Ronald Brownstein, The Atlantic, March 23, 2012
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