Every time the question of Obamacare’s constitutionality comes up, we hear a lot of noise about how conservatives intend to ”strip” health care from millions of Americans, a lot about how Republicans are committing political suicide, and a lot of historical revisionism. Take these comments from David Weigel of the Washington Post, which summarize a number of Democrat talking points neatly.
“You can dream up some lawsuit against Medicare itself, sure, but every legal attack on the ACA has focused on the parts designed to make it a market-friendly compromise,” he tweeted. “This is why a lot of Dems (and Rs) think that if the hail mary Texas lawsuit succeeds — if the ACA is torn up by judges on a technicality — the ‘just fix it’ era is over. Democrats will have learned that compromise doesn’t work and run on single-payer.”
For one thing, in the end, Democrats didn’t “compromise” on Obamacare. The passing of Obamacare frayed our contemporary political order in ways from which we have yet to recover. For the first time in history, a major political party pushed through a national reform of the economy without any buy-in from half the nation. And since its passage, Democrats have demanded that Republicans help “fix it.”
Put it this way: If George W. Bush and the Republicans had used every procedural tool to unilaterally jam through partisan legislation that “privatized” the Social Security system, there would be zero expectation that Democrats should help Republicans fix it.
And no Republican could vote for Obamacare, because there’s wasn’t a single genuine conservative proposal that made it palatable (even if Democrats insist that an idea hatched in the Heritage Foundation in the late 1980s is consecrated GOP policy.) Not even moderate senators from Maine, not John McCain, not one Republican, would go for it. And these were politicians who would often cross party lines.
They couldn’t do it because the imaginary liberal concessions consisted of little more than worthless bipartisan hearings, roundtables, and platidunious letters that the media dutifully framed as Obama’s willingness to deal.
In his big let’s-get-this-done speech in September 2009, Obama reached out to Republicans by promising to maybe shelve the “public option” in state marketplaces (already opposed by a number of now-extinct Blue Dog Dems) and maybe include a small-scale trial program for medical malpractice lawsuit restriction (which liberals had already basically put the kibosh on). The supposed Obamacare compromise, conveniently enough, was Obamacare’s very existence. It was this or single payer.
Even back then, the left’s internal health-care debate rested atop the notion that American voters had not yet evolved to where they could accept the superior morality of socialized medicine. Even these days, folks like Paul Krugman support single payer while also conceding that it “just isn’t a political possibility.” Obama, who was a single-payer advocate when he ran for the presidency, essentially acknowledged the strategy when he tacitly endorsed a plan that would rid the country of his signature achievement.
In any event, in the real world, the only negotiations that mattered were between liberals who were worried about capturing votes needed to pass Obamacare—and any bill that placed health-care spending under government management was the kind of incrementalism Democrats could support—and moderate members who were worried that their careers would be destroyed if they backed anything approximating socialized health care.
No one was passing a single payer plan in 2010. The only legislative debate was between two wings of the same party. The idea that Democrats have spent any time searching for common ground on health care policy is absurd. If they wanted to fix it, they would try and build consensus and start from scratch.
Secondly, there is no “market-friendly” aspect of Obamacare. I can’t really conceive of anything less “market friendly” than forcing people to buy things.
But if I were compelled to come up with some ideas, I’d probably start with a plan that mandates exactly what rent-seeking corporations would sell my captured “consumers.” Obamacare doesn’t only force Americans to buy a product, it tells businesses what that product must look like. And those government-approved plans are larded with expensive coverage that social engineers, not consumers, have determined Americans need.
That is to say, every Republican lawsuit against Obamacare would have made health-insurance more market-friendly. Although one supposes people who believe that contrived price-fixed government-subsidized state “exchanges” are healthy capitalistic ventures have a different definition of what “market friendly” means. Maybe it means anything that doesn’t through the Centers for Medicare and Medicaid Services.
Finally, the individual mandate isn’t a “technicality.” Democrats have always belittled Republican challenges to Obamacare as quixotic long-shot partisan ploys. Yet a number of them have been successful, including a suit that found “cost sharing reduction” payments—designed, like most of the law, to hide the cost of Obamacare by shifting cost to taxpayers while bribing insurance giants to participate—to be unconstitutional. Obama, as his wont, simply ignored the courts.
If anything, in fact, it was the Affordable Care Act that was saved on a “technicality.” As Erin Hawley reminds us in The Federalist, in NFIB v. Sebelius, the Supreme Court rescued Obamacare by changing the meaning of the individual mandate’s “penalty” to a “tax.” Yet, even in that closely contested decision, “the essential feature” of a tax is that “it produces at least some revenue for the Government.”
There is no revenue from the individual mandate anymore. Obamacare, we were told at the time, could only function with an individual mandate. How is it working now?
Even today, reporters struggle to perpetuate the individual mandate sham. We recently learned, for example, that “Biden vows to bring back Obamacare’s individual mandate penalty for not having insurance.”
The severability question is an important one, but in many ways the broader fight over the individual mandate is at the heart of competing visions of governance. One philosophy rests on the notion that the state should able to compel citizens to buy things the government tells them are for the common good, and the other on the idea that markets and individual choice are most effective way to lower costs and improve care.
Progressive, of course, have never been able to explain what governing principle they believe stops the state from forcing individuals to purchase whatever politicians deem important enough. That’s probably because their governing principles are predicated on whatever moves their policy goals forward.