ACA: A Definition

Affordable Care Act (pron. O-bama-kare) (n.): Sacrament of the Democratic Party of the United States of America shrouded in secrecy and legal jargon. As best as can be determined, it is a free gift, not earned, containing at its core nature existentially chimeric characteristics by which the fundamental essence of taxation is present alongside the fundamental essence of regulation, with both parts being coeternal and coequal, yet not two but one, neither confusing one with the other nor ranking the other over the one, each being subservient to the other in legal challenge, begotten not written, adopted not read, a mystery that can only be understood upon its acceptance. It’s sisyphean elements are demonstrated in that although having full power to effect health transformation, it has at present only been revealed in limited form and thus appears to be not affordable, not caring, and not an enforced act. Faithful adherents live in anticipation of its full parousia and hold that executive mandates, imputed to the elect, confer empowerment to see what is yet unseen and understand what is not yet understood. Syn: utopia, 42, Pedro (vote for), unimmanetized eschaton, Godot

Losing A Popular Issue (Blair’s Lessons, part VIII)

Reading about the current government shutdown, ostensibly over Obamacare, reminded me of a story in Tony Blair's autobiography. He wrote about the campaign in 2001, when his government was ultimately voted back into power for another term.

Going into this election, there had been growing discontent with Blair's government. One issue that the Conservatives (Tories) decided to focus on was Blair's unpopular pro-European Union stance. Both the polls and the media revealed that this was a weak point in Blair's platform, so naturally, the Tories thought they could exploit it. Instead, it backfired. Blair explains:

What’s more, while Euroscepticism was just about tolerable, there were—as there always are with such issues—those who wanted to take a position that was already at the outer edge of respectability and push well beyond it. The leadership stance gave them permission to go even further and there’s where the public’s position on Europe couldn’t be entirely guessed by reference to the polls. True, if asked, they supported the Tories on it, but it was never going to determine the election. It wasn’t their priority, so the Tory focus on it gave the Tories a curious, lopsided look that swiftly turned into the thought among the public that, well, maybe they just weren’t ready to govern. Once such a thought takes hold, the election’s over.

In that case, the Tories selected an issue that had popular support, but addressed it in such a way as to appear irresponsible and unprepared to take power. They pushed the issue to hard, to extremely, and consequently severed the popular sentiment from their specific policy stance. The result was another Blair victory—not because the people agreed with Blair, but because they doubted the basic competence of the alternative party.

This demonstrates just how difficult it can be to take a popular issue and translate it to electoral victory. How you address an issue can be even more significant than what the issue is.

I believe that's the issue the Republicans are missing in their attempt to use the government shutdown as an attempt to negotiate delay/repeal of Obamacare. Let's presume for the sake of argument that it really is as unpopular as the Republicans say it is. Stunts like the non-filibuster filibuster that was never intended to block the bill, or the inability to pass a bill out of their own controlled chamber do not instill confidence in the Republican party's ability to govern (were they given power). Nor does the apparent lack of strategy overall.

In fact, I have yet to see a coherent objective to this current tactic. If it's merely about negotiation, than the Obamacare stance is merely a pretext (which is what the Democrats are saying). If it's about Obamacare, than it's not particularly relevant to the budget debate (since the shutdown didn't affect Obamacare anyway, and most of the objectionable stuff isn't a budget question). If it's merely a ploy to make the Democrats give up something, anything, than the Republicans are as petty as they're saying the Democrats are. The only way the Republicans can score even a few points off this is if they are soundly defeated, and then play the victim (a strategy that requires ensuring defeat and claiming it as victory). If it's some combination of the above, which I suspect is the case, well, maybe the Republicans just aren't ready to govern.

Having a popular support on an issue won't help. As Blair warns, "Once such a thought takes hold, the election's over." The people's attitude to the group in power simply becomes (as Blair says a few pages later) "You’ve done OK, the other lot aren’t ready, carry on."

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Also in this series:

Reforming Political Parties (Blair's Lessons, part I)

Racing to the Common Good (Blair's Lessons, part II)

The Right Question (Blair's Lessons, part III)

Debate Prelude (Blair's Lessons, part IV)

Undermining Political Opponents (Blair's Lessons, part V)

The Politics of Immigration Reform (Blair's Lessons, part VI)

Presidential Leadership (Blair's Lessons, part VII)

Undemocratic Opposition (Blair's Lessons, part IX)

International Leadership (Blair's Lessons, part X)

The Healthcare Band-Aid

With the Supreme Court’s decision upholding President Obama’s healthcare reforms, opponents must now do what they should have done from the beginning—make the case as to why the change is misguided. No longer can legality or constitutionality be used as a shield, and no longer can the Court be relied upon to save us from our own bad choices.

First though, I must admit that there is an internal logic to the healthcare reforms (as described by the 4 judge “liberal” majority of the Court that believed it was authorized under the commerce clause). I’ll explain.

The problem with today’s healthcare is that it is very expensive. This is due in part to the law (signed by President Reagan) which requires hospitals and doctors to treat all patients, even if they do not have health insurance. These people may not have insurance for a variety of reasons: pre-existing conditions, too expensive, or they simply choose not to. To cover this expense, health insurance providers increase their premiums across the board, which results in higher insurance premiums.

The solution, according to the new law, is to get everyone insured. This is done in two parts: first, make sure that insurance companies are required to accept people they formerly wouldn’t. This is done by means of prohibiting denial based on pre-existing conditions and extending coverage to children on their parents’ plans until they are 26. The plan also has built-in subsidies for those who can’t afford insurance.

However, this will increase, not decrease costs, since it is adding more expenses for insurance companies. So to decrease costs, it is necessary to get those people who would otherwise choose to not buy insurance (as opposed to those who want it but can’t get it) into the insurance rolls. Their participation, since they are healthy, will bring the costs back down. This is where the individual mandate/tax comes in. It creates a requirement/financial incentive for those who would otherwise not purchase health insurance to buy into the system, thus lowering costs across the board.

Now, that’s the plan (in an abridged version). It is not centralized health care. It is the use of financial incentives in an attempt to get the citizenry to go in a specific direction. In large part, that is what made it originally appealing to conservatives (remember, the individual mandate was the conservative response to the single payer system proposed back in the 1990s).

But it suffers from two errors are central to the entire scheme.

First, it confuses healthcare with health insurance. Even if the plan is a success (i.e. decreases the number of uninsured people), that doesn’t mean that medical care will be either better or cheaper. In fact, health insurance companies right now are one of the primary reasons true healthcare is such a mess. And some doctors who have gone to a cash-only business model and refused to deal with health insurance companies have seen significant decreases in their costs, which in turn, makes their services more affordable. Health insurance is a means to a quality healthcare system; it is not the end goal. And focusing solely on insurance, rather than the underlying issue of healthcare, misses the mark.

Second, the bill’s solution to health insurance expense is not to seek ways to lower that expense across the board. Instead, it simply accepts high costs and seeks to redistribute them. This fails to get at the heart of the problem, which is that health costs are extraordinarily high and rising. There are proposals that address this central issue, but the Obama reforms do not.

The current reform is a Band-Aid, a superficial solution that does nothing about the deeper healthcare problem. It should be exposed as such. What our healthcare system needs is real reform.

Accidentally Constitutional

That was the effective verdict of the Supreme Court this morning with regards to the healthcare reform bill’s individual mandate. Or, as it should now be rechristened, the healthcare tax. (You can read the decision here.)

Needless to say, it initially baffled the news reporters. Below are the conflicting screenshots of CNN and the Washington Post, both captured at 10:17 this morning.

But what does it mean?

Well, most simply, the healthcare reform survives constitutional challenge. It will now be either repealed or implemented, and we get to live with the results either way.

But from a larger perspective, there are two levels of ramifications: the legal and the political.

First, the legal ramifications. Chief Justice Roberts split the difference. He gave the statute’s challengers everything they wanted except the victory. He limited both the commerce clause and the necessary and proper clause powers, which were the first and second arguments the government used to defend the act. Those parts of his opinion give credence to the restrictive reading that most constitutional scholars hadn’t found convincing. And on that issue, five of the nine justices agreed. This shows that the Court still believes that there is an outer limit to the commerce clause and continues the tradition started in Lopez and Morrison. Only on their third argument—almost an afterthought of defending it as a tax—did the government prevail. (As a side note, I’ve wondered why it wasn’t defended as a tax from the beginning. I thought that was the best argument the government had.)

But the tax portion of Robert’s opinion is not a major expansion of federal power. Even at the oral argument it was conceded that Congress could incentivize purchasing insurance by means of a tax credit (similar to buying green appliances or houses or furthering education—or having children for that matter). There is strong legal precedent on the expansive power of Congress to tax, which goes all the way back to the Butler decision of 1936. (Ironically, Butler was a conservative decision that tossed out the first Agricultural Adjustment Act on the grounds that it violated the commerce clause, but adopted Hamilton’s interpretation of the general welfare permitting broad taxation powers. The commerce clause portion of Butler was subsequently overturned by Wickard, the wheat case that has received frequent mention in the healthcare arguments).

So the conclusion is that for the most part Roberts neither expanded nor contracted federal power in this case. He expressly stated that the commerce clause and necessary and proper clause did not permit the mandate. However, as a tax, he found sufficient constitutional grounds.

What I would have liked to see more of is argument about the direct tax issue. The Constitution prohibits direct taxes that are not apportioned (or collected from the states on the basis of population. The sole exception to this is income taxes, which are permitted by the Sixteenth Amendment. I think there is grounds to label the insurance tax an unconstitutional direct tax, since it applies to everyone regardless of income but is not apportioned. Roberts does address this and finds that it is not a direct tax, but this portion of his opinion is somewhat cursory. However, it includes more detail than I’ve seen anywhere else. Were I challenging the mandate, I think this would have been one of my primary arguments: that it is a type of tax that is expressly prohibited, and therefore (since the specific prohibition trumps any indirect permission under the commerce clause) it is unconstitutional. But that wasn’t the strategy taken.

So from a legal perspective, there is more good than bad here. Roberts upheld the law while successfully construing it in such a way as to avoid the broad expansion of federal power that so many feared. My prediction is that when future law students study this case, it will be in the context of a limitation on the commerce clause rather than an expansion of federal power. The fact that the law was actually upheld as an exercise of tax power will be relegated to a footnote in the textbook.

But the political ramifications are even more fascinating. To some extent this decision is reminiscent of Marbury v. Madison, where Chief Justice John Marshall gave Jefferson the win using a method (judicial review) that he knew Jefferson disagreed with. The same is true here, Obama won the case—which removes the politicization of the court argument that would have been raised had the mandate been overturned—but lost the legal argument.

Furthermore, because the law still stands, it remains a campaign issue for this fall. And since it’s now classified as a tax (and a regressive one at that, since it will affect the middle class more than anyone else), Obama can be painted as the President who raised taxes not on the rich, but on the middle class. And going into the week of the 4th of July, no less. In effect, the Republicans get to have their cake (limited federal power) and eat it too (an unpopular new tax to campaign against). It has been constitutionally defanged, but possibly made even more unpalatable for the general populace. After all, if there is one thing worse than the government making your healthcare decisions, it’s the IRS making your healthcare decisions.

Roberts also successfully avoids putting the court in the middle of the political battle. He upholds the constitutional limitations on commerce power, but does so in a non-political way. He doesn’t show an interest in solving the policy questions—exemplifying the conservative principle of being a judge who doesn’t make law. Instead, he pushes the policy questions squarely back into the political ream, not letting Congress get away with taxes under another name yet leaving the mess at their doorstep. In contrast, both the concurring and dissenting opinions have a stronger ideological/political tone to them. Roberts also supplants Kennedy as the deciding vote, taking credence away from the “Kennedy Court” approach many observers have writing about in recent years.

In large part, this decision reminded me why I like Roberts. He very carefully narrows down on the important issues and doesn't get distracted very easily by the politics. His approach is preeminently legal. Which, even when we dislike the outcome, is exactly what we want in a judge.

So no, despite what you’ve heard, the sky is not falling (but if it does, we’ll all have health insurance).

The bigger issue behind the HHS mandate

A lot has been written, said and argued, over the new HHS mandate regarding the provision of contraception. The left claims its protecting women; the right that it is protecting religious freedom.

But in the back and forth, a more basic question has been largely missed.

Since when could the president by administrative order decide that a private company must provide a service for free? Mind you, this is not legislation, this is not a debate over the commerce clause or other legislative powers. This is executive power.  This is agency action. And it’s requiring a minimum level of service. And it prohibits the provider from charging for the service.

Since when did the Constitution permit that? And isn’t this the bigger story?