It has been four weeks
since I listened to all (six hours, I think) of the Supreme Court oral arguments
on the Health-Care Reform Bill.
Unfortunately, between time requirements in my Peace Corps service and an illness, I am only now, with fading memory, pecking
out these thoughts.
The three topics
discussed by the Supreme Court were whether an individual can be coerced into
buying insurance; whether the law is severable (akin to a ‘line-item’
constitutional review); and, whether Medicare and Medicaid
should be extended further into the states.
A few house-keeping notes.
- First, the two constituent bodies under the Constitution – the states and the people – are asserted to be coerced and are in fact affected by this decision.
- Second, this decision and this bill are not about President Obama. In fact, “Obama Care” is a misnomer since the President actually proved himself to be a statesman by negotiating an outcome after the bill had come to an impasse in Congress. Apparently, a large chunk of the bill came out of the Heritage Foundation, hardly a partisan Democratic organization.
- Third, the alternative I propose may not be available in view of our current fiscal insolvency. Besides, it sounds a little simplistic.
Coerced transaction. Of course this is a coerced transaction. Justice Scalia failed to grasp the economics
of pooling risk, as Paul Krugman pointed out, with his analogy to buying a
commodity. Nevertheless, requiring young
people at the pain of a stiff fine to purchase something manifestly outside
their needs can only be coercive.
Coercion, however, is
permitted by the Sixteenth Amendment; former Justice Learned Hand deemed
taxation as a “coerced transaction.” So,
call this fine what it is: a tax. The Constitution
permits taxing for the general welfare.
Severability. Severability, if permitted, should be applied
in this case to the reauthorization bills to avoid a funding crisis. Nice try, whoever crafted the law, but the ‘reform’
part of the bill ought not to derive a bogus legitimacy from routine spending
bills. Of course, how a bankrupt country
expects to pay for all of these things lies beyond the scope of this letter.
Extension of the power
of Medicare and Medicaid. Big Problem;
this involves a coercive usurpation from the states of rights protected under
the ninth and tenth amendments. As
dismissive as most people are of the now famous “broccoli” argument of Justice
Scalia, that popular disdain blithely ignores a far more fallacious, and
damaging, argument asserted by Justices Kagan and Breyer.
That argument states
to the effect: the Federal Government’s willingness to give a lot of its money to
the States can not be considered coercion.
Here are the fallacies of this logic:
- First, the Federal Government is not giving anything to the States because it has nothing to give. That money belongs to people who earned it through their toil and then paid taxes. Alternatively, it is money funded by a debt issue – meaning it is money that belongs to future private earnings taxed to pay that debt.
- Second, this is as not as simple an offer as it sounds. When Justice Kagan asks rhetorically, why anyone would turn down ten million dollars to work somewhere, she is overlooking the possibility of a bribe. Let us imagine a policeman who is about to arrest a bank-robber. The desperate fellow says, “Hey, pallie, how about half the loot if you let me go?” The officer is not being coerced but we hope he does not take that bribe or the thin blue line just got snipped.
- Third, that is not all the two Justices overlook. Not only is there a big enticement in taking the Medicare / Aid monies under the extension, but there is a large penalty: losing all current federal support for elderly and indigent care. Now that is like the bank robber saying instead, “Hey, pallie, how about half the loot if you let me go?” The officer says no and is about to add attempted bribery as another crime committed when the robber cuts in, “Okay, then, have it your way. But if you don't take this deal, bud, we will kill you and your family.” The robber somehow proves he is not bluffing and so the police officer relents. That is coercion.
Taking these last two
points back to this case, does the analogy fit?
Unfortunately, yes, it does. Who
is the robber? The federal government. Who is the police officer being coerced? The states. What is the crime? Usurpation of states’
rights by the Federal government. The law is
unconstitutional, except for the reauthorizations.
So should we turn our
back on our fellows who are old, indigent or both and cannot afford health-care? That surely does not sound like the America I
want to live in, does it? Put another
way: is health-care a right? After all,
President Franklin Roosevelt and other liberal presidents have argued that it
is. I tend to agree with Presidents
Truman, Kennedy, Johnson, Carter and Clinton: health-care is a right.
There are two issues
to be reconciled with this notion.
First, if health-care is a right, then it is one that is not enumerated
in the Constitution and thus reverts under the ninth and tenth amendments to
the states or to the people. No, general
welfare language (i.e., collective security) does cut it for it is not explicit
enough. So how do we get to a right of
health-care? There are two constraints
to consider before proposing a solution:
- First, what is the level of health-care contemplated by this right? Hint: of course medical care is rationed; it always has been.
- Second, we are the United States of America. We are not Japan, Canada or Britain. A lasting solution to this national dilemma will have to be organically consistent with our culture and Constitution. We can not expect to apply another country’s plan willy-nilly as a template.
So, here is what I
propose. That the Federal government
provide a minimum guarantee of health-care in the form of preventive health-care. This could be accomplished transparently by
allocating $1,000 per person and send sending these ‘capitated’ payments to the
states for each resident in the state as a block grant. This $1,000 level is arbitrary and whatever
the median cost of preventive health-care across the country could then be
adjusted for the comparative cost of health-care of each state (within
reason).
Any additional ‘right’
to health-care would come from the state, which tends to be more answerable to
its citizens. This right is collective
in nature because of the pooling of risk; hence, it reverts to the states, not
the people. Additionally, private
insurers could sell ‘supplemental' health policies.
These would be paid for
by people or by their employers (as an attraction to work for said employers)
as they deemed necessary. In truth
states have already started experimenting in health-care provision (e.g., much
maligned ‘Romney Care’ in Massachusetts).
Over time, I suspect, the states and the people would become willing to
delegate some of their rights or autonomy to the Federal government for
additional leadership on the health insurance issue.
This expectation
brings to mind President Carter’s old proposal of some type of coverage of the
upper reaches of catastrophic illness.
Then the states, the people and private sector are left to fill in the space
(e.g., child-birth) between the two book-ends of preventive health insurance
and catastrophic reinsurance.
How much this would
cost is anyone’s guess. This idea may
not be affordable and may overlook too much of what we take for granted. Only time, and, in the short term at least,
the Supreme Court will tell.
