Last week I wrote about what choices you might make if you find a law unconstitutional or reprehensible. It was a fairly abstract piece centering on Thoreau's and Plato's philosophies. What made me think of it was the health care reform act which has generated so much anger and controversy over the course of the last nine months or so in particular. The subject is too big to treat comprehensively except in a book, or, at least, a very long magazine article, and I have no such intentions (sighs of relief). I just want to putter around about some of the issues.
What’s everyone so excited about? For one thing – it is a BIG plan (and we know what happens to the best laid plans of mice and men). I forget if it was Boehner or McConnell who said during the health care summit that “we” don’t do large scale legislation very well and I agree. It is the same utopian dreaming that countries go through all the time. It doesn’t work because even collectively, we lack the ability to predict the future or understand unintentional consequences of legislative acts. These unintentional consequences tend to be “bad” consequences. The reason is they always end up costing more money than we have to spend.
Last week I was being lambasted by an Obama supporter who is either a self described liberal or should be, about my lack of appreciation for the new law. “You just think that poor people shouldn’t have insurance,” she said. Naturally, I responded that yes, of course, I hoped everyone under the poverty level dies slowly and painfully, because all people like me who oppose the legislation are evil by nature and I just can’t help myself. I then asked her to name the big government program in our history that was financially solvent, and, of course, there isn’t any good answer to that. I didn’t even have to go to ask if she realized a dollar is now worth less than 1/20 what it was a century ago or if she was aware that pretty much all macro-economists now predicts some kind of financial disaster sooner or later, far beyond what we have had before. At that point I think she asked me how come I didn’t realize how conservative I was and the conversation broke down (it’s okay, sports fans, as usual I was called a "liberal" within a couple of days too by someone else when discussing the same subject – health care - partisans often believe they "own" all the arguments and you must be one or the other).
But before she couldn't take it anymore, she asked me if I didn't believe the CBO that this would reduce the deficit over ten years. After all, they are non-partisan. My answer was, of course not. The CBO doesn't pretend it can make accurate predictions on cost over time in an untested area. They just claim they are no worse at making economic predictions than blue chip companies and the administration. If you don't believe me, go look at their website and read their own analyses.
While the CBO, whose main mission is budgets, and other economists have a wealth of data concerning things like unemployment, GDP and so forth, and can make reasonably accurate predictions over the short term, there is no real data for scoring this huge bill of thousands of pages which creates entirely new situations. The variables are simply too many and too large. They can only score it based on what information they are given and upon a set of "critical assumptions". If the assumptions are wrong, then they are wrong. The CBO is no more capable of predicting the future than anyone else.
Although looking at history is not a safe predictor either, sometimes evidence taken from it can be very persuasive on general principles (e.g., if you fight a war, it is a safe bet based on historical evidence that carefully laid plans will go awry). If predictions for the viability of social security and medicare were so far off - if the state of V.A. services are so deplorable, if states are starting to cut down on medicaid because it is unworkable, what chance does this have of being any different? There are only a few ways it can be made to work and none of them are good - raise taxes dramatically, the single payor solution (with European level taxation to boot) or cutting or rationing services. Any of those ways, you know who pays the bill. We do. We always pay any increase in spending through taxes or the effects of inflation. It is always that way when government lends a hand. It is the same when government taxes an industry. If they are a viable industry, then customers will pay that tax indirectly too.
Plus, as we know, the bill passed begins taxing this year and many benefits don't begin to take effect for several years (some have taken place immediately). Although it is not entirely true, the number usually mentioned is 10 years of taxation and six years of benefits through 2019. This is not denied by proponents. It leads one to conclude that the measures cannot pay for themselves on a yearly basis.
The idea, of course, that through control of fraud and waste, there will be great savings is one we should all laugh at. There can never be enough government oversight of real life, even with 16,000 new IRS agents (all who will need health care benefits and pensions) to guard against fraud and waste. This is simply part of life and it cannot be legislated away. Besides, as is so often the case - it is the government which is a major player in the fraud and waste itself. Whose watching them?
There are a number of real problems everyone knows needs to be addressed, like millions of people without insurance, the problem of pre-existing injuries (you have a job - you get sick, say cancer - you get fired - 30 days goes by - you get a new job - the insurance for your new job doesn't cover your cancer treatments. Uh-oh) and so forth.
Of course, the last people we can look at to tell us what is going to happen is anyone in government, because we know the legislators did not read the thousands of pages and do the study necessary to even take a reasonable guess at what will happen. How often do you read a 2700 page book, which doesn't even state the law itself, but often just what the changes to existing law will be, and understand it completely? Let me guess - never. I seriously doubt that anyone, ANYONE, has read this new law enough and had the time to think about it enough to understand it well enough to guess. That includes those who wrote it. Should that be the way we legislate?
Last, I do not have that big of a problem with the procedures taken to get the bill passed, although the conservatives made a lot of headway politically with it. For one thing, neither reconciliation of the primary bill was used nor was the Slaughter rule invoked at the end. The Democrats simply got enough votes in the house to pass the bill when the Stupak group (anti-abortion Democrats) caved. As I always say, Republicans and Democrats, liberals and conservatives, all get what they deserve because when they are in office they use whatever tactics they can to win, even ones they've complained about in the past. I don't want to hear liberals/Democrats complain about the filibuster, when they've used it themselves when in the minority. I don't want to hear conservatives/Republicans complain about reconciliation or similar short cuts when they do it themselves when they are in the majority. Any of these procedural problems can be easily fixed if both sides agree to do away with them or modify them in 2017, the first year where there will not be an incumbent president elected - in other words - no one can say who will be running the show. Neither side wants to do this. They never do because it is all partisan blather. They just want to take advantage when it is their turn and to complain when their ox is getting gored.
That being said, the outright institutionalized bribery of legislators we've seen in connection with this reform, by giving their states huge sums of money on the backs of the other states - e.g., Nebraska, Louisiana, Vermont, in order to by their votes, disgusted me, disgusted the nation as a whole, and even disgusted some legislators. It was bad governing at its worst. I believe it is the most significant reason Scott Brown was elected a Republican senator from Democratically controlled Massachusetts and I believe it will be remembered when November rolls around this year.
Last on the cost aspect of the law - what about the similar Massachusetts' health care experiment? Well, apparently, they've lost a tremendous amount of new jobs which have literally gone across state borders, I've read about 16% of new start ups; their hospital costs were estimated at 55% above the national average; and the majority of citizens think it isn't working out so good. Maybe the administration should have taken another look at how that was going before they pressed a similar plan upon us.
Constitutionality. A number of states with Republican leadership have filed suit attacking the legislation on constitutional grounds. I don’t believe it will win even with a slight conservative majority in the Supreme Court. The main attack seems to be that the mandate to buy insurance is an unconstitutional abuse of the commerce clause permitting regulation of interstate commerce.
Let me do a one minute commerce clause job for the uninitiated. The commerce clause is found among the powers of congress in the Constitution. It permits congress to regulate commerce AMONG the several states.
What that actually means according to the courts has been growing like bamboo for the past 200 + years. There was a time when the expenditure of federal funds for a project that did not cross state lines was extremely controversial. Nor was congress permitted to regulate matters that took place purely within a state. That changed completely a long time ago. Probably the most famous example of the new thinking came during the second world war when poor Mr. Wickburn was fined and ordered to burn excess wheat he was growing for his own use on his farm because the federal government was trying to drive up the price of wheat and had limited production of it. After that, the gloves were off. Seemingly now, everything comes under the commerce clause. Congress can even regulate things that are completely within one state or one property if they think it might affect interstate commerce or be of a subject that congress has tried to regulate. That leaves precious little out. Two Supreme Court cases in the 1990s seemed to draw a line in the sand when federal laws concerning guns in school zones (U.S. v. Lopez) and abuse to women (U.S. v. Morrison) were ruled unconstitutional as they did not concern commerce and invaded the state's police powers. But, both of those cases were controversial right/left decisions and the court stepped back in Gonzales v. Raich when even Justice Scalia said the federal government could regulate marijuana grown and used in one state because it was part of an interstate congressional scheme of law enforcement. But, actually, those three cases were outliers and the fight had long, long been won by federalist forces. There is very little that courts will not find within congress’s reach. Health care is, if nothing else, an interstate concern, at least as the law has been read for 60 some odd years.
Moreover, the idea that the health care mandate - the requirement that you by insurance or pay a tax or penalty, is somehow more restrictive of freedom than the many taxes we are required to pay, including the income tax, or the governments right to draft you and send you to war, is not going to fly. I'm not getting into here whether this is all ultimately good or bad, but I don't believe the opponents of the law will find relief in the courts. Sure, there is a body of conservatives and libertarians who would like to turn over many commerce clause cases, but, it is not realistic to think that this is going to happen.
There is another way to attack the law on constitutional grounds although I haven't read any commentary on it yet. The constitution states that the government may not have a capitation (head tax) or other direct taxes, like property, unless it is apportioned among the states. The mandate to purchase insurance is not an income tax. Everyone is either required to purchase insurance or to pay a penalty to the government (this is what the 16,000 new IRS agents are supposed to do). That means everyone is being taxed and it could be described as a capitation or direct tax Thus, arguably, it should be apportioned among the states. If the mandate falls, everyone knows, the whole scheme falls on its face.
But, admittedly this is a complex issue. Proponents of the bill will claim it is not a tax (although the bill says it is a tax) or not a direct tax. As I've harangued about before, you know that what is in the constitution is not so important anymore. We have had an oral constitution for a long time, and, in my humble opinion, most people like this to some extent (even the conservatives). However, I do believe there is a better chance to succeed with this argument than with the commerce clause argument stated just above. I do not know that it is even being put forward yet.
There is a third constitutional concept I will have to look into more, as I don't have enough information yet, but if this health care plan requires state officers to enforce the plan, or make a regulatory scheme itself to enforce it, that would quite possibly be deemed a violation of separation of powers doctrine.
And, of course, constitutional issues often raise hypocritical attacks by both sides. Conservatives want us to believe that they care about state power and that the federal government shouldn't be able to order citizens of the various states to buy insurance or pay a penalty. But they are every bit as much for expanding federal power as liberals when it suits their cultural, military or political purposes (marriage, euthanasia, drugs, electoral laws, domestic disputes, the peace time army and even abortion come immediately to mind). And liberals want you to believe that this legislation is cost effective, even though you would need never to have read any history for the last one hundred years to believe it, or think that for the first time in history we will find a cure for fraud and waste.
Naturally, the conservatives are now very concerned about the national debt and the deficit and the liberals are not. Is it me, or were both sides talking out of the other side of their mouths when the Bush administration was still in power?
“How’s that hopey-changey thing working for you?” I heard Sarah Palin read that line as she addressed a Tea Party convention. Both liberals and even moderate conservatives seemed appalled about those words as if she really spoke like that. What she was doing, if you don’t realize it, was making fun of the pollyannish views Obama seems to radiate. If we just believe - good things will happen. It is the same thing Hillary Clinton, Joe Biden and others on the left were making fun of back in the day before they lost and joined his team.
Although it has probably reached a plateau for a while, the debate has dramatically affected Obama’s popularity. Take a look at this poll I pulled off of The Rasmussen Reports (nowadays, all polls are also accused of being partisan in design and you have to choose who you listen to carefully. Rasmussen has a long and deserved record for accuracy. To get their numbers they use only likely voters and subtract those who strongly disapprove from those who strongly approve. A negative number means more disapprove than approve. This update is a few days old but I just checked and the numbers haven't changed. It is updated daily averaging the last three days.
You may note that other than the first couple of months when moderates/independents caught in the glow of the new president and perhaps his skin color were reverting to more heartfelt positions, that the biggest jump (down) seems to have come in June/July, 2009. Why? I think I know. That’s the period of time congress came out with its health care legislation.
There has been a slight uptick since the health care bill has been passed. The president was right in believing that when the bill passed their would not only be more people who liked the benefits (and wouldn't think about the problems) and that it is very hard to take away something like health care insurance once it has been given. No doubt, it is a sticky problem and one that no political party will not face without trepidation.
After all, if I were running as a Democrat, I'd start putting kids pictures up on ads and saying their life was saved because of the health care reform. It is pretty hard to argue against that with - but we can't afford this.
It is also true that people like winners. People includes voters. President Obama won this battle. Republicans might win the war (if the war is the next election) but that remains to be seen. They've lost some of their momentum and their soap box.
My solution. Of course, whenever you criticize any legislation, it is a fair question to ask what is your solution. I don't have a complete one. But, I do have two ideas. The first one I wrote about last year and it involves raising hundreds of billions of dollars to defray health care costs by making charitable donations for that purpose a tax credit rather than a deduction. This would be so popular that it would have to actually be limited either by a fixed dollar amount or by requiring that for every dollar that goes to it, a dollar has to be given to a "regular" charity. Otherwise, all other charities would be drained of their sources. My other idea is broader. It's this - go very slow. Massachusetts' plan may be failing. But, it was a try. And, each state is trying to figure this out and the federal government should be encouraging it.
A few months ago I watched a round table of governors on C-Span at their yearly meeting discuss health care. Know what I learned? They understand it much, much better than U.S. senators and congressmembers I was watching debate it at the same time. Know why? Because they are held accountable for the results, unlike congress. It was fascinating to watch them discuss ideas, and instead of pelting each other politically, saying things like - that's a great idea - I want my state to try that. Health care should be as much as possible left to the states to figure out what is the best way to do this. We have 50+ laboratories to try and we shouldn't just use one big lab, where there isn't accountability. Of course, we should be doing this with things like education too. Good luck to me on getting my wish on this one.
I had a few other political topics I wanted to discuss, such as U.S.-Israel relations, the coming bankruptcy of several populous states, the great increase in state taxation we can all expect, and my usual drum beat on partisanship. But, you've probably had enough for today. Okay, that last one I can't resist commenting on. I was listening to Rush Limbaugh one day while driving in my car. As usual, I agreed with about half the things he had to say and cringed at the partisanship. But, he said one thing that so stunned me for its lack of introspection that it stunned me. I really loved this. You see, he explained, when conservatives criticize liberals, they do it out of love. But, when liberals criticize conservatives - they do it out of hate.
Trust me on this one, Rush, there is not a whole lot of loving going on, on either side. But, when you and Keith Olbermann have a beer together and share some laughs, let me know about it. Maybe you'll change my mind.
- I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .