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The Healthcare Mess

So apparently, the Supreme Court case on Obama’s healthcare reform is rapidly descending into madness.

Let’s start with the objection to mandates. Paul Krugman gives the counterarguments here. To quote:

Is requiring that people pay a tax that finances health coverage OK, while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them.”

I would only add that while the government can directly compel us to buy things, it generally doesn’t, for a very good reason: It’s irritating. And that irritation–our dislike of being told what to buy, an intrusion that is softened if we simply pay taxes and get the thing instead–is the control on government power here. That is, we’ll only put up with such obvious intrusion in certain special cases.

In fact, one might expect conservatives to argue that every government program should be mandated like this, in order to make the government intrusion clearer and more irritating. And in fact, the idea for mandates came from the neanderthal-right Heritage Foundation. And replacing Social Security with private accounts? The darling idea of conservatives everywhere? Yup, that would involve mandates.

So the argument against mandates comes down, not to any principle it violates, but to the fact that it’s Obama who wants them.

But that’s not the craziest part.

The Supreme Court–or those appointed by presidents named Bush or Reagan–seems to be actually listening, seriously, to another argument. Marty Lederman on Balkinization explains it clearly. To paraphrase:

  • Way back when, Congress made Medicaid money available to the states, with conditions on how it be spent (i.e., they had to spend it on something resembling Medicaid, not on hookers and blow).
  • States could refuse the terms by refusing the money. This is not federal coercion in any possible sense of the word.
  • The current law will, in 2014, provide more money, with new conditions for that money.
  • The money is provided all together–states can turn it all down, but not just the new money.
  • The states with Republican attorneys general are saying that this is unacceptable coercion–they want (or say they want) to turn down the new money without losing the existing money.

But what if Congress had simply:

  1. Cut off Medicaid funding in 2014,
  2. Immediately instituted a new program, with more funding, that covered the same bases and more,
  3. Allowed states to opt out of the new program if they chose (I say “allowed” just to stress the point–in fact states have a clear and unchallenged right to opt out)
  4. Called the new program Medicaid in order to save on letterhead?

That would be exactly the same thing.

Given that steps 2, 3, and 4 are clearly constitutional, the state AGs are arguing that step 1 is unconstitutional coercion.

Which means saying, essentially, that Congress cannot ever stop funding something once the states have gotten used to the money.

This is so far from sane law, common sense, and even conservative ideology that I’m wondering whether the state AGs deliberately made pathetically weak arguments. That would make sense: any state AG who said, “hey, this program means a lot of money for our state and we shouldn’t fight it” would have no career in the Republican party, but that doesn’t mean that, as individuals, they actually want to fuck over their own states. They may have figured that the Supreme Court would reject their arguments. Their careers are intact, their states get that sweet federal money, everyone wins.

But if that was the plan, the joke is on them: many justices are treating their funhouse arguments as grave and sensible.

And why should we be surprised? This is the court that decided, in Bush v Gore, that George W. Bush should be president and fuck you. Of the five justices who gave us that travesty, three are still on the court. The two who left were replaced with worse ones.

The sad thing is, it’s 2012. The health care bill passed two freaking years ago, but the best parts–the parts that actually insure most of the uninsured–still haven’t gone into effect and won’t until 2014. And some will take longer than that. If they had gone into effect–if more people saw the benefits in their own lives–fighting it would be political poison. (The state AGs aren’t fighting the existing program, because the existing money is popular. It’s the program that we haven’t seen that they can fight, for the exact reason that we haven’t seen it.) The right wing has had years of opportunities to kill decent healthcare before it’s born because it has taken such a ridiculous time to *be* born.

I can’t help but quote my own post from 2009:

It’s not that fixing a health insurance plan really takes that long—nine years (2009-2018) was enough time to create a military from scratch, fight World War II, dismantle the military, and rebuild it for the Korean War. Back in the thirties, nine years was enough time to create important programs like the Works Progress Administration, the Public Works Administration, and the Civilian Conservation Corps, have them do their work, and dismantle them.

On the other hand, the long delay gives the forces against reform time to undermine it, and an entire freaking presidential election campaign to replace pro-reform politicians with ones more amenable to their interests. One doesn’t have to be paranoid to think that maybe this is the point.

I didn’t think of the legal aspect at the time. More fool me.


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