Wednesday, March 28, 2012

The ObamaCare Scenario

You got your communism in my medicine!
You got your medicine in my communism!
Unless you've been under a rock, you know that The Affordable Care Act is being argued before the supreme court today (Wednesday the 28th being the last day). The final decision is, apparently, due in June.

The word is that it's not going well for Team Obama--some comparatively liberal justices have questioned the constitutional legality of the mandate and, while strong, even pointed or hostile questioning is not a definite indication of a leaning (the judge could be adopting the pro-ObamaCare point of view and wants to make sure it's airtight) the thinking is that, yeah, they're not sold on it.

I am not qualified to judge the arguments--or even to really summarize them here--but I'm going to link you to this summary of yesterday's discussion (Andrew Sullivan) and note several points of interest.

Points Of Interest
Here are some things I am thinking about the ObamaCare discussion:

  • The Limiting Clause:
  •  One of the major points of contention yesterday is that if the Federal government can force you to buy a private product--insurance--what can't they force you to buy? For sure, if you are engaged in commerce the Interstate commerce clause can get involved--but if you're just smoking cigarettes and watching Captain Kangaroo? Seems unlikely. Sure, health insurance is different from everything else--so why did Team Obama do such a bad job of pointing that out?
    If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

  • End Game--ObamaCare Wins: It is possible that ObamaCare will win. The odds are against it as of, like yesterday:
But that doesn't mean it couldn't happen. If the justices do uphold the mandate (either because it is a tax--which the Federal Government generally thinks they can levy or because there is some limiting principal) what is the net effect? I have a suspicion: it would be bad for Romney. This is because although conservative forces have looked to the next presidential administration to strike down ObamaCare, now that the court will have tempted them with its destruction and then followed up by not doing it the feeling will be that Romney--who has never apologized for RomneyCare will be too weak to attack it.

  • End Game--ObamaCare Loses: If, as it looks like is quite possible, the mandate--and therefore ObamaCare--is struck down, might it be good for the Democrats? James Carville thinks so: We tried, now it's their turn. This has been suggested as one of the reasons that Team Obama is doing such a lousy job. Also: ObamaCare is not popular. The suspicion I have heard--but cannot find a handy link--is that people like some or all of what it does--but fear it will interfere with the coverage they have and/or cost too much. This, IMO, is a reasonable concern. If the Supreme Court strikes down ObamaCare might Team Obama breathe a sigh of relief?
What Do I Think?
Not knowing anything about constitutional law, I will say that I think that ObamaCare is, if not unconstitutional, definitely an edge case or an "expansion of powers." As such, we ought to be really sure its benefits are worth the risks (both budgetary and expansion of powers-wise). I also suspect that there is a Limiting Clause argument that makes sense. I'm not the guy to articulate it in a legal sense but to me, it goes like this:

(a) Unless you die young--and suddenly--you are going to need healthcare at some point.
(b) Healthcare Insurance, in America, is tied to your job. Trying to get healthcare insurance outside of a job that is any kind of decent is, if you have ever tried, almost impossible. It's hugely expensive and you better be so healthy you don't need it. If not you are screwed--if not right now, later (when you get sick).
(c) When you get sick, if you do not have health insurance, tax payers will pay much more for you because you are in the emergency room than if you had, say, preventative care and had actually not had the critical health problem.
(d) Therefore your sick ass will be a burden on us all so something has to be done. In this case: making people who think they won't need it buy insurance. 

This is why automotive insurance is required: you can't go "I'm a good driver--I won't crash. I don't need insurance!" and go without. Even if you're statistically a good driver! You also can't just go "I'll pay for whatever I damage. Out of my own pocket." You might think you're ready--but society does not. Society wants you insured so there's no question the money will be there.

Now, you can choose not to drive. But you mostly cannot choose not to go to the hospital when you are desperately sick (you can, if you are conscious--but come on).

So I think some kind of mandate make sense. From what I understand of the original Republican-backed Heritage Foundation concept was that everyone would buy critical care insurance only. This wasn't "normal insurance" but was designed to defray the cost in the case of a serious condition. I think that's about the minimum that makes sense in the above scenario and I can see why Republicans (at the time) backed it. Now "Let Him Die!" gets applause. What the heck, guys?

I also don't think that health insurance, by itself, equals health care. If the system is overburdened or the health care doesn't pay for whatever structural reasons are involved then it's a bit like having a gold ownership certificate in the Mad-Max world: yes, you bought gold  you Glenn Beck listener you--but Lord Humongous will not spare you for handing over the paper certificate. You need the metal. If government mandated insurance is only taken by a handful of doctors you can have all the paper you want and it isn't medicine.

So I don't think there's an easy answer. I'm not sure ObamaCare is the answer--but I'm pretty sure "Let Him Die!" isn't the answer (and the pre-existing condition stuff is also pretty nasty, really--so are cut offs when you get really sick).


  1. Your argument for the benefits of universal & required insurance are reasonable. However, they're an economic/policy argument, not a legal one... and a legal one is all SCOTUS gets to consider. A limiting clause might work, but really I think that the whole shebang is on pretty thin ice. Forcing people to purchase something just won't fly, and claiming that health care is a special beast from a legal point of view seems like a pretty uphill battle to me.

    1. Well, I'm not the guy to make the legal case--but I do think health care is different from most other products since we don't give you a car if you don't have one--but will give you health care if you show up at the ER.

      That said, yeah: there are people with years of experience who are gonna get to decide this. I'll see what they say.

  2. Here’s a question: If SCOTUS strikes down some or all of Obamacare, would the same fate also apply to Romneycare? I’d imagine so.

    Assuming Romney’s one signature accomplishment as governor is wiped out, how would that affect his chances in the primary (if he hasn’t locked it up by June) or the general (if he has)?

    1. It would not. What is unconstitutional for the Federal Government is -not- (necessarily) out of bounds for a state. States -can- impose a mandate. Or, well, at least that is what I am told.

      By Romney supporters--but still.