When the Affordable Care Act (known more popularly as Obamacare) first passed Congress, I wrote this post ruminating about some of its implications. My previous post was in August 2009, when I was in Iraq. Since then, I have left active duty and in three weeks I will finish my first year of law school. As you might imagine, I feel like I am in a very different place in life now. I had forgotten most of what I said there until I read it, just now, and I am pleased to observe consistency across time. The major concerns then are the major concerns now, chiefly 1) the disastrous results of universalized or universal-ish healthcare, and 2) the serious threat to our constitutional order such legislation represents.
On Thursday, the Federalist Society host Dr. Merrill Matthews to discuss, ostensibly, the constitutionality of the healthcare law. Dr. Matthews, though, is a policy expert and his focus was less on law and more on social impact. Professor Patricia Wilson, one of our faculty, responded with comment. Her response was concise, and time limiations made for an inadequate airing of questions and objections. In part, this is a response to her comments.
First of all, the long view. People tend to get wrapped up in the zeitgeist and their own generation. There is a good deal of hyperbole in modern politics on both sides of the aisle. On the left, democrat politicians talk about any proposal to change Medicare as effectively killing senior citizens, while willfully and consistently refusing to acknowledge that the program will bankrupt itself without intervention. On the right, people talk about Barack Obama as if he were uniquely problematic, as though another liberal democrat would be less so (in my estimation, we should be thankful he is so divisive and inept, since a powerbroker like Hillary would likely have done much greater damage).
Constitutions and The Constitution
Americans at large usually mean the written constitution when they use or hear the term. But every society has a constitution. A constitution is the governing principles of society, usually inherited through long usage and experience, as they manifest in the actual social interactions of that people. A people without such a construct does not rise to the level of a society (and hence my aversion to the libertarian version of Utopia). Thus, our society has both a written Constitution and an unwritten constitution. While the written document binds courts in ways that the unwritten constitution cannot, the two are on exact parity in terms of their importance. Some examples of features of our unwritten constitution: political parties, the cabinet system of executive administration, congressional delineation of agencies. Russell Kirk, inter alia, has written extensively on this subject, and I suggest you start with his Rights and Duties if you are interested in these distinctions.
What, then, is constitutionally at stake as regards this law? Justice Anthony Kennedy, widely anticipated as the swing vote in the case, asked whether it was appropriate for Congress to fundamentally change the relationship between the citizen and the state. This annoyed those on the left, who think such notions amount to quaint reactionary impulses, and emboldened conservatives.
But Kennedy is only halfway there. The fact is that this would only make de jure what has long been de facto. The American system, even more than the English sytem, has always been characterized by intermediaries between the citizen and the nation. Part of this intermediary structure is the State: the quasi-sovereign entity that retains plenary police power. Within this federalist system, the citizen was insulated still further by public and private entities - the church, corporations, charities, etc. Robert Nisbet refers to this as a kind of salutary feudalism in his Conservatism: Dream and Reality. These constitutional aspects have been eroded by the "progress" of the 20th century through which intermediary institutions are subsumed crowded out by the state, and the more direct relationship between Washington, D.C., and citizens of the several states.
In a land where federal programs buy rice for poor people and federal agencies can confiscate land based on administrative fiat, is the healthcare law really a surprising step forward? It is a good thing that it has awakened some sectors of society to the encroaching federal Caesar. But if the Constitution draws a line - or a river - across which the government may not cross, then it is only more shameful that we have watched it inch closer and closer so that this final step would not seem like a problematic move. The real concern is whether the government has been across the Rubicon for 60 years, at least since the Court agreed that Congress could tell a private citizen not to grow wheat in his own yard (Wickard v. Fillburn). Is Obamacare just a final realization that Caesar and his army have been rampaging through our city for decades?
When enough of the population operates under a different set of principles, is it really accurate to continue to point to an older unwritten constitution, even if that is enshrined to some extent in the written document? Liberals may have something like this in mind in their view of an evolving or living constitution. I think this is ridiculous as a matter of positive law - the oddest part being that it is taken seriously by constitutional scholars. But as a critique of the unwritten constitution, it may be valid. Did the framers of the constitution not anticipate that something like this might happen, that sectors of the population would experience a radical shift in values?
I believe that is precisely what has happened. A large number - perhaps a plurality - now think it is entirely appropriate for the government to both appropriate productive wealth from some and to paternalistically provide things like food and housing to others. I won't try to hide my contempt for this latter value system - but the fact is that, partially by design, large numbers of people now subscribe to it. The original paradigm was one in which the citizen was large and the state small. But this kind of liberty is difficult and many of our compatriots would prefer the easier life of state-servitude.
Federalism: The Original Compromise
The original constitution accounts for this in its very structure - it is perhaps its most innovative feature. The federal government is supposed to be largely inconsequential on domestic matters. The states, with their general police power and unlimited jurisdiction, are free to govern as they see fit, subject only to the fundamental guarantees of the Constitution. A federal government of narrowly limited subject matter jurisdiction combined with a flexible and dynamic state government - this is the essence of "federalism." It is therefore perfectly constitutional for Massachussetts to require its citizens to buy health insurance or to paint their houses white or to remove hats in public buildings.
I alluded to this in my post two years ago. Federalism really is a brilliant system - but it is incompatible with the hard ideology of modern liberalism. Now, it is not enough for states to implement programs to feed the hungry and care for orphans and educate the young. The left demands a stultifying, numbing homogeneity, imposed through a variety of devious means (preemption, conditional funding, etc.). This approach actually leaves no possibility of compromise. As Mark Steyn has said, borders give free people choice. But when all is America and America is all - what border can we cross?
This cuts both ways. It would be just as inappropriate for the federal government to enact legislation dictating who can marry whom. New York and Vermont can allow same-sex marriage - they can even prohibit opposiste-sex marriage if they want. Some on the left have recognized the benefits of federalism as they grow frustrated with an American majority who just refuse to accept the ideology of leftwing college professors. Heather Gerken, a professor of law at Yale University, recently published a piece acknowledging just that. My cynical side informs me that liberals will use this as part of their ratcheting mechanism, where local control can only move leftward and liberty-seeking or individualist initiatives will be blocked by some invented constitutional principle. But the byline of Gerken's piece sums it up perfectly: "Distrust of states' rights exist for good historical reasons, but today, minorities and dissenters can rule at the local level." Amen. Preach it, sister. (Jonah Goldberg and Ilya Somin agree.)
So what is at stake in Obamacare? In her response to Dr. Matthews, Professor Wilson opened with a list of things in the healthcare law that she thought would draw universal approval. I would like to briefly address some of them.
1. She claimed that the law was somewhat conservative in maintaining the employer-based system (presumably instead of converting to single-payer). This is problematic for a number of reasons. First, it is kind of a man-behind-the-curtain argument. Employers will increasingly be unable to afford coverage, and pretending it is not somehow coming out of the employee's compensation is silly. It is by no means clear that the current system of employer-provided healthcare will be able to survive. Furthermore, it is disingenuous to imply that this is conservative. Politically, a criticism from the right is that government has created a good part of the problems with our healthcare system with its excessive meddling. The tax code explicitly disfavors individual procurement of health insurance, and when this is combined with other systems it is almost impossible for an individual to "own" a health insurance policy.
2. Obamacare forbids selecting against pre-existing conditions. This is a common refrain from supporters of the act, but it skillfully eludes reality. Forcing insurers to accept people with pre-existing conditions, among the many other mandated coverages of the bill, destroys the entire concept of "insurance." Under the Act, companies are no longer creating a risk-pool - they are essentially serving as an aggregator for funds and a system for paying for care. This isn't "insurance" - it is redistributive subsidy.
3. Individuals can remain on a parent's plan until their 27th birthday. This is the aspect of this law that best represents the divergent worldview. While President Obama and supporters of the Act will call benefits of this rule "children" or "students," the fact is that a 23-year old is an adult. This is nothing more than a dispensation of government largesse at the expense of the insurer. Professor Wilson told a story about students coughing in the halls, upon which she bemoaned that they "can't go to the doctor because they don't have insurance." What an absurd conclusion! This is reminiscent of the contraceptive farce. Last time my wife was sick on a weekend, she went to an urgent care clinic and paid the cost out of pocket. Insurance had nothing to do with it.
And here we come to the conclusion at last. Why are insurers and governments involved in every day routine transactions that have to do with health? There is no reason why a simple office consultation costs more than $50. You have this absurd situation where some employers are paying $10k a year for insurance for employees who maybe need antibiotics once, and employees can't go in for a simple backache without incurring bills in to the hundreds or thousands. Who thinks this is a good system? And who thinks more government involvement is going to fix it?
The End of the Experiment
I know it is dramatic, but I fear we are coming to the end of this experiment in limited government. As discussed above, enough people clamor for the easy life on the government dole, and enough politicians are willing to oblige them through an ever expanding welfare state. Many of these politicians are well-meaning, if paternalistic and confused. Year after year we have to explain Biblical context to some do-gooder who thinks Jesus commanded massive social welfare programs when he enjoined His followers to care for the needy. (Sometimes these are just socialist agitators trying to point out hypocrisy. The best response to this is probably to tell them that Karl Marx commands them to stop buying coffee.)
The conservative solution to the healthcare problem (there is a healthcare problem!) is to gently extract government from the bulk of the process. Government created the insurance-centric model in the first place, and every time it reaches new levels of disaster, government steps in with more "helpful" fixes. If Obamacare passes, cost projections and common sense make it a certainty that it, too, will fail, only to be rescued by a singler-payer system.
The passage of Obamacare represents the final admission that Congress has unlimited power to govern the lives of American citizens. This is the preferred model for many Americans, most notably those who stand to gain by concentrating power in the distant capital. But it is a very serious abrogation of the original compromise, one that effectively renders that compromise breached. I can only hope it does not come to that.
Those of us who prefer the harder road of individual responsibility and community-based governance have less and less choice. Our hope is that federalism returns in force and that we have a place where the experiment can continue. For this to occur, states and inviduals, backed by the 10th Amendment, will have to push back against Leviathan and insist the original compromise be honored.