Politics & Media
Dec 15, 2010, 10:10AM

Those Who Can't Govern, Cherry Pick

Republicans are using the courts to do what they can't—eviscerate health care reform.

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The recent court challenge, in Virginia, to the American Care and Recovery Act’s individual mandate—the legislation’s linchpin—has been in the making for a long time. Immediately after the passage of health care reform, conservative DAs from around the country tripped over themselves to file briefs and blow smoke.

Without the individual mandate, we’d find ourselves in a situation where healthy people only buy insurance when they’re not healthy anymore—analogous to the reality that, before the passage of reform, the uninsured represented by far and away the largest percentage of health care costs. Repeal would be a disaster.

While certain laws pertaining to car insurance and seat belts and medical licensing haven’t earned that much sustained ire from the Right Wing’s Defenders of the Constitution and the American People from Big Liberal Government, health care reform’s individual mandate quickly became the hill to take. Megan McArdle, over at the Atlantic, is one of the best writers for hard-nosed criticism of health care reform. Recently she wrote:

On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can't the government force you to do?

This doesn't seem to be a question that interests progressives; they just aren't very excited about economic liberty beyond maybe the freedom to operate a food truck.


I’ll first back up a bit and say that I both championed the American Care and Recovery Act and believe it to be flawed—a flawed but important first step in addressing the disastrous state of health care in this country. It is my belief that free markets and capitalism just don’t mix well with good, egalitarian health care, and that a collective—yes, a collective—approach to reform is needed. Automobiles cause the deaths of tens and tens of thousands of people per year and injure even more, and yet imagine the social cost of a system where millions didn’t have car insurance. It would be a disaster, with thousands left in bankruptcy, not unlike our health care system.

Megan's point about the relationship liberal's have with economic freedoms is duly taken. Over here I talk about the tax package compromise struck by President Obama and Republicans and how I find it to be ultimately a good thing if, again, imperfect. Texan's comment really captures the best counter-argument to my points:

The progressive style of taxation today, is and perpetuates, class-warfare. Furthermore, most social programs the government provides are not for the benefit of all citizens equally (e.g. healthcare for the poor, social security etc.). Therefore, even in a flat tax scenario, the wealthy are paying more for fewer services. Now, I'll concede that the rich do have a burden above and beyond the average citizen because they have more to protect. The flat tax seems like the best way to acheive that without interjecting class-warfare issues. This way, the rich are still paying more than anyone else but at least on a percentage basis, it appears fair.

"Fairness" is a damnably difficult terrain to map out. Texan is right: a flat tax does create a much more fair—egalitarian, if you will—situation. Universal health care is "fair" in that no one gets left out of the doctor's office. There will always be a tension between government as an agent of collective progress and government as unwieldy Leviathan. It's a basic separation point between conservatives and liberals (though Texan and I both agree that the government is pretty much terrible with money).

Repealing the reform bill is almost certainly doomed to failure—though it will be the grounds for something of a showdown between the House’s newest and hard Right members, a lot of them dyed-in-the-wool Tea Partiers, and the Republican establishment. It’s going to take some time before the court challenge reaches the Supreme Court, and there perhaps we’ll see more interest in the workings and who’s-who of the SCOTUS than since Bush v Gore.

Repeal through the courts will cause a small- to mid-time disaster, in terms of logistics and red tape and the like. A system that is already, massively complicated just got a lot more complicated and now faces the prospect of semi-nullification. And the status quo will be slightly more static-y, which means yet more people will either go bankrupt, die or simply fall through the cracks. It’s not possible to save everyone; it’s not possible for Big Government to provide health insurance all on its own; it’s not possible to tax the richest Americans each and every time we have systemic problem in the country’s bookkeeping.

This bill takes all these things into account, while staying informed by the moral exigency of health care reform. There are cuts in Medicare and Medicaid, the pharmaceutical and medical industries and their thousands of employees aren’t going anywhere—in fact they just got a slew of new customers; it's defiicit neutral.

The push to repeal health care reform on the basis of constitutionality is a cowardly attempt to circumvent both Congress and the American people—a majority of the latter either supports the bill as is or believes it didn’t go far enough. Using the courts to cherry pick Democrat-lead legislation is craven, as if the political intrigue involved in the US court system wasn’t already pernicious enough (and let’s not forget the obscene practice of Congressional holds on judicial appointments—something every iteration of Congress is guilty of, but it is particularly bad this time around).

What would I prefer? Masochistically: more debate. More legislation and proposals. Keep the ball rolling on improving this country from the ground up. Congressional Republicans can’t seem to write a piece of coherent health care-related legislation if their lives depended on it. It’s indicative of a political party that is only interested in governing. Bill Clinton and Barack Obama brought about vital entitlement reform and a deficit-neutral health care reform bill, respectively. The Democratic Party, love it or hate it, at the very least attempts to solve these issues. Yes, both presidents have their ideological weapons and political henchmen, but in between their presidencies we saw the Republican version of tackling the big issues surrounding health care: Medicare Part D, one of the biggest deficit-busting acts in decades, a total dereliction of fiscal competence.

In the absence of any governing philosophy, blindly partisan politics and court-stuffing remain the watchwords of the Republican Party.

  • First, thanks for the nod. I do appreciate it. Second, I agree that the republican approach of repeal is a waste of time and is simply sour grapes. Third and finally, I agree that the repubs need to stop complaining and start drafting. What scares me is that the dems have always seemed more concerned with the act of passing a bill than taking a more fiscally sound look at what they are passing. The "lets pass it first and fix it later" approach may work in good times but just seems reckless in these fiscally trying times.

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  • I agree entirely. And that last point made me think of the ridiculous "Doc Fix" situation, which is straight-up the result of bad math in the original text of the bill. A little patience would help everyone. With health care, for better and for worse, it was debated on for over a year and so I think it does an OK job of holding on to the middle ground.

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