And the problem of good intentions. From a review of a new biography of Louis Brandeis. In the Lochner decision:
As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact health and safety regulations (as all good progressives wanted), the maximum hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law." Not only was the baking trade "not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee," but the limit on working hours involved "neither the safety, the morals, nor the welfare, of the public."
So what was the purpose of the law? As George Mason University legal historian David Bernstein has shown, the origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied for the law, and their nonunionized, mostly immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. As Bernstein observed, "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized workers." So Lochner not only protected a fundamental economic right, it thwarted an act of economic protectionism as well.
Something similar happened in Adkins v. Children's Hospital, where the Court struck down the District of Columbia's minimum wage law for women as a violation of liberty of contract. This was the case where Urofsky claimed Sutherland exhibited "a complete disregard for the real world." Well, here are some facts about that world. One of the figures in the case was an elevator operator named Willie Lyons, who had earned $35 per month from the Congress Hotel. Under the new minimum wage law, the hotel would have had to pay her $71.50 per month. So they fired Lyons and replaced her with a man willing to work at her old wage. That's why she sued. As the legal scholar Hadley Arkes memorably put it, "the law, in its liberal tenderness, in its concern to protect women, had brought about a situation in which women were being replaced, in their jobs, by men."
Today's speech from the President:
The president cited Teddy Roosevelt, Harry Truman and Edward Kennedy as forebears who paved the way for the historic moment that could be just around the corner: passage of the biggest health care measure since the creation of Medicare and Medicaid in 1965.
Teddy Roosevelt lived not long after Bismark invented the welfare state. What's President Obama's excuse for having the same program a century later?
I think Richard Adams makes a good point that a system that centralizes health care spending decisions across the age spectrum will over the long run tend to shift health care resources away from the old and very sick to other groups that might get more "quality of life benefit" as determined by somebody else. I think that concern is valid, but I come at it from another direction. Under any likely (or even very unlikely but possible) health care policy scenario, the government will still be paying for a large portion of end of life care. Medicare might be restructured any number of ways (including vouchers), but most old people will still be depending on government dollars for their health care. The key is balancing government's spending obligations, and changing the health care market so that the government can give the elderly access to high quality care without crushing the economy.
My favored approach is to try to bring down the cost of health care in general by forcing providers to compete for the health care dollars of consumers. Various versions of this approach have been described by David Goldhill, Walter Russell Mead and Paul Ryan. Health care providers would have to find ways to provide their services more cheaply than their competitors, which if the experiences of any other industry is a guide, will lead to business model improvement that will allow them to provide a higher volume of services at a lower cost per service. Mead's description of the walk-in Walmart clinic where the medical personnel will have instant access to your electronic medical records and a constantly updated database of best practices is just one possible example. Maybe we will see a partial return to older ways of doing things. Maybe semiretired doctors will hang a shingle outside their door to see people for routine ailments. The traffic might be low, but hey, they are at home watching tv anyway. A system in which people spend their own money for routine care (in return for higher wages and a tax credit) could make this a viable model. He could charge less (maybe twenty five bucks for a fifteen minute visit about something like a cold or ear infection) and since the transacton would be in cash, he would have little administrative overhead. As a (very large) participant in this market-oriented system, the government would be able to buy more health care for its elderly dependents at a lower cost and make continuing their care much less of a burden
Obamacare moves in the opposite direction. It cuts medicare while adding a new middle-class entitlement. It virtually outlaws HSAs and turns health care into government mandated and partially government subsidized comprehensive health care prepayment. Since government will force people into a system of health care prepayment (people will have to pay for their health care whether they need, want, or even use the services) there will be no incentive for consumers to shop and therefor no consumer pressure on providers to control costs. The result will be both artificially high prices and overuse of services. At some point the government will run out of money to pay for it all. That doesn't mean that cost won't be contained, just that it will be contained in a brutal and stupid way. Rather than improve productivity, the government will then ration the artificial scarcity that government policy created by denying services. Whether the denial is done by career bureaucrats or elected officials, the process will be opaque so as to deflect blame from those who are being denied care (in every sense of the word). There is a certain sensibility that argues this is the way to go. One might argue that centralized "expert" direction of medical resources will lead to more efficient and fair distribution than expanding the confusing, wasteful market. The distribution of medical resources from the soon to die (well relatively soon) also has its defenders. In one unguarded moment, Obama was one of them.
Much of the dicussion of rationing health care has focused on end of life issues. We currently spend a good chunk of health spending in the last few months of life. Hence, the argument goes, we are being unreasonable, making heroic efforts to save and prolong life, when they, as a rule, have little prospect of doing much good, particularly in comparison with what the same money could do elsewhere. Perhaps we might also look at beginning of life issues. If we have bureaucrats deciding how to allocate money, might they decide that fertility treatments for women over 40 or so simply are not a good use of scarce resources? Such treatments are not inexpensive, and as women age, the odds of having babies that cost more to raise than the average baby rises. (I also fear that there would be subtle, and perhaps not so subtle, pressure to abort children who are likely to have problems.) Rationing such treatment would be a tragic cost of the centralization of health care. If this bill passes, I hope that such choices are not taken away from us.
If it is constitutional, or perhaps I should say if no one with sufficient authority is willing to say that it is not constitutional to "deem" a bill to have passed without actually voting on it, it ought not to be. Hence I propose an amendment, to be added to Article I saying roughly: "No bill shall become law unless the exact same has been passed independently by each house of Congress and then signed by the President, or, failing his signature, being subsequently approved by 2/3 of each house."
Whoever introduced it could say, "it is unfortunate that the Democrats have resorted to Parliamentary casuistry to pass a bill without really passing it. That should never happen again. This amendment is designed to do that," or words to that effect.
It's still only 90 miles from Key West, and it's still a murderous dictatorship--although, as Henry Gomez writes, it never generated the sort of fury from the American left as did, say, South Africa in the 1980s. In fact, Michael Moore suggested that Cuba's health care system might be a model for the United States. Today Dr. Darsi Ferrer languishes in a Cuban prison for revealing that Moore was merely serving as a mouthpiece for Castro's propaganda.
Gomez would like us to remember that today--March 18--marks the seventh anniversary of "Black Spring," when Castro's goons rounded up 75 critics of the regime. Most of them are still locked up, but one of them, Orlando Zapata Tamayo, died in prison on February 23.
But it is what I think,
1. The Senate version of Obamacare will pass in the House. The vast majority of undecided House Dems are either holding out for the best offer or hoping this is all just a bad dream. But at the end of the day, they will do as they are told. I don't know if it will be by "deem and pass" or by an up or down vote.
2. Obamacare will have become law without any overt changes to the filibuster rule.
3. I think that in the short term, conservatives will try (and I believe with all sincerity) to make the most of Democratic manipulation of procedural rules and their stated willingness to manipulate those rules even further. I think that the long term consequence will be a weakening of respect for procedural norms on the right. Respect for rules like the filibuster are dependent on the belief that those rules will be respected by the other party when they are in power. The majority gives up some power in the present in return for not being shut out when they are in the minority. The willingness of Democrats to use the reconciliation process to pass Obamacare is a clear signal to Republicans that respecting the filibuster in the present will not, on the most important issues (where filibusters are most important as a moderating device), preserve the filibuster when the Democrats take over again . So when Republicans are in such a position that only the filibuster stands in the way of achieving some major goal, the Republicans will gut the filibuster. I imagine that there will be a few liberals who cheer the loss of the filibuster as an advance in small-d democracy, but I don't think they will be very many.
The often astute Jeff Rosen eggs on Obama's confrontation with the Supreme Court, outlining a Court-bashing strategy Obama can use to his advantage. (Given Axelrod's interest in Lincoln's political savvy, I'm sure something similar has occurred to him and has put it in play.) The trouble is, Obama's manner of unleashing his attack, at the SOTU, made him look like a schoolyard bully, not a TR with the bully pulpit.
If the Dems use the Slaughter House Rules to get Obamacare through, this Court-confronting strategy might help delegitimize an opinion declaring the desperate tactic unconstitutional. Hence the short as well as long-term importance of the current wave of Mrs. Clarence (Virginia) Thomas-bashing. But the left needs to silence more than her for the proposed Rosen strategy to work.
UPDATE: See Matt Franck's demolition of Rosen.
So Yglesias is now shilling his "You might lose your House seat but make history" line over at the Daily Beast. But how will those Democrats who waited until the last moment to collect the final payoff or who broke under pressure from their party (or both), before they voted yes on Obamacare be remembered even by sympathetic historians? How do we remember Marjorie Margolies-Mezvinsky? She was the House Democrat who buckled to the House Democratic leadership at the last moment and voted for Clinton's tax increase in return for a promise that Clinton would go to her district for a pr show. She lost her House seat, but I don't think that historians who stoop to notice her will see real heroism.
My impression is that she is remembered as a case study of how congressional leadership can intimidate and bribe weak-willed caucus members into politically suicidal acts. So perhaps the wavering House Democrats face a more complicated choice than they might assume. If they switch at the last moment, putting aside their principles (if they have any) and the will of their constituencies, they might well get a place in history. But it might not be the place in history that Yglesias is offering. They might instead, get the place in history that they deserve.
With Obama's latest feint toward moderation, his reform of No Child Left Behind, consider Kevin Kosar's brief critique. Here's his assessment of political science's contribution to political understanding.
See the sidebar links for book reviews, commentary, and lengthier studies on education, including his book. Besides being an authority on federal higher education policy, Kevin also manages a website devoted to the model of all social science scholars Edward Banfield and another called AlcoholReviews. He is the late professor's grandson-in-law--a fact evidenced by the closing line in the NCLB article "So call me grumpy, but I think much work remains to be done, and I won't be surprised if we end up sorely disappointed again."
If I had to bet, I think that the Democrats will find enough votes in the House of Representatives to pass the Senate version of Obamacare. I suspect that status rewards will play a role in the switches. I was thinking presidential appointments, academic sinecures, and awards ceremonies. Matthew Yglesias suggests another status reward. House members who vote no and lose reelection as a result will be remembered as Heroes of the Revolution and lauded by liberal historians in 2060.
So lets break this down. Why might these no votes be inclined to vote against Obamacare? I can think of two major reasons. First, because they might object to Obamacare on the merits of the policy. Second, because they respect (or fear) the perceived wishes of their constituents who oppose Obamacare. How many members of the House of Representatives would be willing to put aside their substantive objections and/or the will of their constituents not for rewards in this world, but in the hopes of gaining a posthumous favorable mention from some liberal-leaning historian? My first guess is too many.
This morning Bloomberg is reporting that the United States, along with Great Britain, is in danger of losing its AAA credit rating. In addition, Social Security has announced that it has begun cashing in its Treasury bonds to make up the difference between what the SSA has been collecting in taxes and what it's been paying out in benefits.
I know what you're thinking--what a perfect time for Uncle Sam to take on a massive new entitlement program!
Men and Women
At the Happy Mean, Priscilla reflects on the right of gun ownership in the Third/Fourth world and its meaning for women. "'Tapestries are lovely, and we all want one, but [Afghan Colonel Shafiqa] Quraishi prefers that women have guns. Her immediate goal is to expand the number of women in the police force to 5,000.'" Priscilla agrees with Mary Eberstadt that women should not serve in wars--but a policing situation is different.
So I bought Romney's new book . I figure that If I'm going to oppose him, I ought to be up to date on my reasons. I think that the combination of mandates and subsidies in Romneycare was an idea worth trying. It must have seemed like a good way to increase coverage and reduce consumer health care costs while preserving a private health insurance market. It hasn't worked out as well in practice. The combination madates and subsidies has created a perverse political incentive within the Massachusetts health care market. Providers can expand their customer base by lobbying the legislature to mandate coverage for more services rather than try to compete for customers based on price. The cost of these mandates are hidden from consumers because it ends up as higher-than-the-national-average premium increases and ends up getting blamed on the mean old insurance companies. To the extent that our current health care system is unsustainable, a national version of Romneycare would make it more unsustainable.
The health insurance system under a Romneycare arrangement becomes an ever more rigid and government regulated form of comprehensive medical care prepayment in which the costs are hidden from the consumer and the benefits go to organized interests. Any attempt to reopen the market by reducing the mandate burden is easily spun as benefiting the same insurance companies that are currently overcharging you. And there is of course no guarantee that lifitng the coverage mandates will lead to lower premiums. For all you know, your employer might switch to a policy with less coverage but no less cost. The risks of change are obvious, the benefits of change speculative, the costs of stasis hidden.
In his book, Romney wrote that he was surprised that "every [italics in original] interest group in the state supported" Romneycare. As well they might have. Everybody gets a cut. Even the insurance companies have their customer base guaranteed by the individual mandate and the coverage mandates shield them from aggressive competition. The politicians even get to posture against the premium increases (and maybe win back some small, certain to be temporary reductions) even as the system they constructed and administer guarantees endless future premium increases. Perversity piles upon perversity.
It might be possible to construct a mandate and subsidy system that works better but it would have to be totally different from Romneycare. It would mean giving consumers more control of their health care dollars (through a combination of HSA's and catastrophic coverage) and forcing providers to compete based on a transparent price system. It would mean creating a mandate and subsidy system that fostered a competitive rather than corporatist health care market. Mitch Daniels in Indiana has shown how such a program can bring down costs even without mandates.