Strengthening Constitutional Self-Government

No Left Turns

We Have To Start From Where We Are

John Moser's post put me in mind of Ross Douthat's comment that while individual Republicans might have credibility on the health care issue, the party as a whole (and especially the top congressional leadership) does not.  I mostly agree with both John and Douthat, but I would like to add my own thoughts.

1.  Parties are always getting better and worse.  A Republican President imposed wage and price controls.  Another Republican President appointed John Paul Stevens to the Supreme Court.  Parties should never be trusted, and can never have clean histories, but they can be moved to better directions.

2.  Republicans deserve alot of criticism for their neglect of the health care issue, but as Avik Roy pointed out in National Affairs many of the ideas for market-oriented health care only matured in the 1990s.  The Republicans and most other center-right institutions were slow to pick up on and popularize these ideas, but not quite as slow as one might think.  It wasn't like any of them had been taking those ideas in with their mother's milk.  My first exposure to those ideas was in a Christopher DeMuth speech on CSPAN. 

But the slowness in engaging with and popularizing those market-oriented health care ideas had consequences.  One of them is that you get taunted for your party's past flirtation with a policy of mandating and subsidizing what amounts to comprehensive private prepaid health care as a way of avoiding a single payer system.  Those taunts are actually the least of the Republican's problems.  The biggest problem is that the failure to popularize those ideas in the past, imposes costs on the party leadership if they want to talk about them now. 

Take Douthat's criticism of the Republicans for not offering a Ryan or Daniels approach to transforming the health care system as an alternative to Obamacare.  In the real world, the past failures to popularize market-oriented healh care put all of the short term political incentives against such a strategy.  There would have been no internal consensus within the party about which type of market-oriented policy to follow.  There would not even have been a real consensus in favor of such a general approach.  Does anyone think that the two Republican Senators from Maine would stick their necks out for any market-oriented health care policy without clear evidence that the public was strongly in favor of such an approach?  Another problem is that the public starts off with zero understanding of those ideas and a great deal of anxiety about losing their access to our health care system.  The Democrats would have been able to launch a devastating series of attacks (at least as effective as those launched against Obamacare) and the Republicans would have been on the defensive having to  spend enormous amounts of time trying to explain what was wrong with the Democratic attacks.  I wish they had.  I think the long term investment would have been worth it, but I'm not trying to win a congressional election in November.  As a tactical matter, it made sense to combine an attack of Obamacare's mandates, Medicare cuts, and tax increases with offering an alternative that consisted of a series of uncostly regulatory changes that would put downward pressure on premiums but leave the system untransformed.  If the choice had been between Obamcare versus Ryancare (which included Medicare cuts), rather than Obamacare vs. a center-right tweaked status quo, public opinion might well have been more favorable to Obamacare in the short run.  That might well have translated into an easier time passing Obamacare and  fewer Republican gains in Novemeber.

Douthat is of course right that by not making the harder but more farseeing choice, the Republican congressional leadership missed one more chance to begin the process of educating the public about market-oriented health care.  It is an irony that the political incentives that made that choice so hard were put in place by the failures of earlier Republican Presidents and congressional leaderships. It is a vicious circle.  Or maybe not.  Maybe the problem is one of expectations.  Maybe it makes no sense to expect the congressional leadership to unite their party around a set of policies the public does not yet understand.  Maybe the congressional leadership enters into the picture at some later time, when tens of millions more people have been exposed to the arguments for market-oriented health care and have heard the criticisms of market-oriented health care answered in detail.  The first step of getting the public to gain a basic understanding of market-oriented health care is not going to be taken by John Boehner.  It will have to be taken, if it is taken at all, by back bench or more junior leadership members of Congress, by governors and presidential candidates, and by all the institutions of the right of center that have an audience.  There is no one else. 


Lighten up folks

I understand that there have been some real threats, to politicians of both parties, and all of us agree that such threats of violence are completely uncalled for and out of bounds, but complaints that Sarah Palin is inciting violence by highlighting target elections it beyond parody.   It reminds me of  George Carlin's classic baseball v football routine.
Categories > Elections


A Grand Bargain?

Although the government pretends otherwise, Social Security and Medicare are, in fact, welfare programs.  There is no relation to today's payroll tax payments and tomorrow's benefits.   In fact, we simply pay current benefits out of today's taxes.
That gives me an idea.  Conservatives sometimes note that roughly 50% of Americans don't pay income tax.  The Left replies by pointing to the payroll tax.  If we classify it honestly, as a transfer payment, that is correct.  

The only way to end the myth that social security and medicare are pensions is to kill the payroll tax.  There's nothing left to cut in the income tax for close to a majority of Americans, if memory serves.  Including the payroll tax in that calculation would change that.  By eliminating the payroll tax, and rolling it all into the income tax we find a way working class Americans and, at the same time, create a more honest and transparent tax policy.  That would also set up a major change in federal old age benefits that would help with the long-term deficit.  It would make a convenient time to means-test benefits.  Why should wealthy people get transfer payments.  As a result, we could get a more "progressive" tax system and system of federal hand-outs, and, at the same time, we eliminate the myth that our old age hand-outs are, in any sense, pensions.

Categories > Economy

Health Care

The dirty little secret about the health insurance mandate

Republicans have lately been denouncing mandatory health insurance as an unconstitutional assault on personal freedom.  However, in the 1990s many of them were actually touting mandatory private health insurance as a "free-market" alternative to government-run health care, as this article illustrates.  Even the Heritage Foundation was pushing it, and this partly explains why Obama publicly opposed it during his presidential campaign.  There are, of course, plenty of reasons to object to the recent legislation, but this demonstrates, once again, that the GOP is a weak reed on which to rely on matters of individual liberty.

Categories > Health Care

Health Care

Predictable Consequences, part III

Can anyone who's spent any time at all considering the health care "reform" possibly be surprised by this?
Categories > Health Care


This Is Interesting

Here's a young George Will, way back in 1975, asking good questions of F.A. Hayek on "Meet the Press."  George's questions are highly salient for the current situation.

(Hat Tip: The Foundation for Economic Education.)
Categories > Economy

Health Care

Commodifying Health Care

Yesterday, the Washington Post argued that Congress may regulate health insturance throughout the Union because health care is a "commodity,"

The Supreme Court has given Congress wide but not unfettered latitude in regulating interstate commerce. It barred federal efforts to promulgate laws that ban guns near schools and those addressing violence against women, ruling that these activities have nothing to do with commerce. But health insurance is a commodity, and a consumer who sits on the sidelines has a significant impact on the market.

Strange argument.  I thought that the Court ruled that the gun free school zone act was unconstitutional because it did not regulate commerce, not because it was regulating commerce, but, at the same time, that commerce was not interstate.  The same is true of the other case. The court was saying that not all activity is commerce, even if it might, in some way, have some consequences for the market.

What's behind the Post's language, I suspect is Wickard v Filburn, a ruiling of the FDR Court which ruled that a farmer growing wheat on his own land for his own use was still engaging in interstate commerce, because his actions had an impact on the market as a whole.  What was really going on is that many other farmers were doing the same thing, trying to get around the limits the federal government sought to impose on wheat production.  If there was a private use exemption, the regulation would be greatly weakened, therefore, the court argued, the law must allow the U.S. government to limit a farmer's use of his own land for his own purposes.

The trouble with that ruiling is not that it is entirely illogcal.  One can make a case that the decision was, indeed, necessary to regulate interstate commerce in the fashion the federal government wanted to.  The trouble is that it makes a mockery of the Constitutional text. Regulating the amount of his own, private land that a farmer may use is not a constitutional means of economic regulation. If the Congress has the right to regulate "interstate commerce," and not simply "commerce" throughout the U.S., that necessarily implies that there is such a thing as non-interstate commerce.  The Court ruiled that, in effect, there is no such thing.   As Thomas Jefferson noted long ago, "It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless."  The Court violated this rule in Wickard, ruiling that, in effect, all commerce is interstate commerce, and thus interpreting an important provision of the Constitution out of existance.

P.S. As Randy Barnett reminds us, in the eyes of the Constitution, "commerce" does note mean "economic activity," even if that's how our ruiling class tends to understand it nowadays.

Update: I wrote the above in a bit of haste as I was rushing off to a meeting.  I fear I didn't quite complete my thought.  It may be true that one could argue that all farming is, somehow, connected to interstate commerce. That was no less true in 1789 than it is today.  The logic of the constitution suggests that simply having an impact, however remote, on the general flow of commerce across statte lines, is not a sufficient condition for concluding that an activity may be regulated as "interstate commerce" in the eyes of the constitution.  Beyond that. the language of the constitution is built upon a deepter understanding of the nature and purpose of government, and that deepter understanding is the criterion which we should use to interpret the text.

Categories > Health Care


Quotation du Jour

Supposing, in my old house, for example, I discover the dry-rot beginning in the timbers, or that my foundation is settling a little, or perhaps my neighbor is setting up a business that affects the purity of the air. . . . What am I to do then? Must I be conservative here too? The true conservative policy in such a case is not submission, but reform--something that will restore to me the advantages of my old way of life; something that will prevent me suffering by a most unpleasant change.--Speech of Charles Francis Adams to the Republican National Convention, 1860

Categories > Conservatism


Why We Need to Remember

Mac Owens takes the novel Matterhorn--written by friend and fellow soldier, Karl Marlantes--as an opportunity to discuss the question of the importance of war memories.  Remembering war--in its fullness and not as a cartoon of either glory or horror--is often regarded as something important for the well-being of the soldiers who fought in it.  But Mac points out that such memories--whether presented as memoirs, novels, or movies--are important for us civilians too.

Without accurate portraits of war, our collective memory will be false and this obscuring of the truth will prevent genuine understanding.  Without that genuine understanding, we will fail to be genuinely grateful and, instead, we will look upon our soldiers (which is just another way of saying that we will look upon our country) either with a childish form of contempt or with an equally childish kind of worship.  American soldiers doing their duty--whether obviously or only ambiguously to the good--are doing nothing less and nothing more than what might be required of any of us to preserve our liberty.  Their example and their memories should remind us of what doing that job (a job that we are all called to do in one way or another) sometimes takes.   
Categories > Military


Cheap Imitation Lincoln

John J. Pitney writes a sprightly and instructive column today exploring the many ways in which the wit and wisdom of Abraham Lincoln have been contorted, twisted, and engineered to create useful (though false) verbal props for American presidents (and speechwriters) who ought to have known better.
Categories > Presidency


On How NOT to Keep a Republic

Last night, while correcting homework and cleaning up from dinner, I groaned as I heard, between these things and the general mayhem surrounding our children on a school night, a familiar and tired theme drumming out from the television in the other room where my husband was watching the nightly news.  Lots of folks in Congress are complaining about some rough calls and voice-mail messages left for them in the last few weeks.  I bet there were some!  Did they think they could conduct themselves in the way that they did and not stir up some angry and heated passions?  Some--both Republicans and Democrats--have even complained of death threats and requested security protection.  Of course, the focus of this "report" on TV was Democrat members and the dangers to them presented by "fringe" groups such as . . . "the Tea Partiers."  

So isn't it interesting that this news about a shooting at Eric Cantor's office is the actual news I woke up to hear about today? 

Fringies and unstable people abound in EVERY political movement and, sadly, they abound in nearly every permutation of every political movement.  Nuts should be called out.  But barring evidence of a clear-cut call to violence, it will not do if, in an effort to stave of the fringies (which, by the way, is a futile mission), we begin to condemn and call out for condemnation the larger political opinions and thinking that seemed--for whatever reason--to be a part of some particular nut's move to violence.  If we do that, we end all rational discussion.  We stifle debate.  But worse, we risk losing our Republic.

Both sides of this (and every) debate in American politics should do what they can to call back their dogs.  But they should also learn to hold their tongues and resist the too easy temptation to condemn the opinions of their opponents because of the insanity of a few of their fans.
Categories > Politics


On Keeping the Republic

This Andy Busch spirited meditation on the passage of the health care bill is a very fine piece of writing, both good and true.  Please read it.
Categories > Politics


Links, Links, Links!

1.  Patrick Ruffini says alot of the stuff I've been trying to say only better.  He is right to mention all the honorable conservative policy analysts who have been trying to develop free market-oriented health care policies.  He is also right that the failure of the right to sell the public on those policies (or even make the average citizen aware that such policies exist) gave liberals the initiative, and made it much easier for liberals to pass a government takeover.  My one reservation is that a free market-oriented approach that gets traction won't be a "Republican" approach.  To the extent that a free market-oriented approach will tend to first appeal to conservative Americans, and to the extent that those Americans are concentrated in the Republican party, free market-oriented health care will tend to win most of its earliest and most fervent converts among Republican voters and leaders.  But if supporters of free market-oriented health care start winning the argument (HUGE if), converts from the Democrats will be found for both reasons of principle and calculation.  Some of that happened in the debates over tax cuts and welfare reform.  Its not for nothing that one of the best recent articles in favor of moving in the direction of free market-oriented health care came from a Democrat writing in a liberal-leaning general interest magazine

2.  Ross Douthat is wasting his sympathy on Stupak, but he otherwise makes some good points.  Stupak is a discredit to every category with which he is associated - to include Democrats, politicians and carbon based life forms.  But Douthat is right that there is a pro-life constituency out there that is uncomfortable with the liberal position on abortion, but also uncomfortable with much conservative rhetoric they are hearing on economic issues.  A well thought out, well articulated, pro-family economic agenda might go a long way to winning over many voters that are not impressed by what they hear at the Tea Parties. 

3.  John Cornyn  demonstrates some of the problems inherent with trying to repeal Obamacare without having a better alternative in sight.  There are parts of Obamacare that poll well and some that poll really badly.  The problem will be in trying to cherry pick what gets repealed based on what will help Republicans make short term gains in November.  The problem is that the popular stuff (like guaranteed issue) and unpopular stuff (like the mandates, tax hikes, and Medicare cuts) tend to go together. As Douthat points out, getting rid of the unpopular stuff that pays for the popular stuff makes Obamacare worse rather than better.  The regulations like guaranteed issue would make premiums higher (indeed would make health insurance a joke), and getting rid of the tax increases and Medicare cuts would balloon the deficit by hundreds of billions more dollars. The only responsible way to beat the combination of popular and unpopular elements of our new Obamacare system will be to convince the public that there is a better alternative on offer. 

Categories > Politics

Health Care

Predictable Consequences, part II

Richard Adams explains why one of the unintended consequences of the recently-passed health care reform is likely to be a rise in medical tourism.  Here is one more, courtesy of economist Steven Horwitz:

Requiring that insurance companies cover people with pre-existing conditions is like asking an auto insurer to cover a car with demonstrably bad brakes.  That is, it's not so much insurance as it is an outright subsidy.  Larger firms will probably be able to afford this, particularly with the individual mandates, but smaller ones will be pushed to the wall.  The result will be an oligopoly.  Of course, for most liberals the bill is only supposed to be a way station on the road to a single-payer plan, so they might not see this as a problem.

Categories > Health Care

Health Care

Obamacare and Publius

So what now?  Repeal?  Court challenges?  To this point, as far as I can tell, conservative hopes for effecting the kind of political fumigation necessary to rid us of this odious health-care bill appear tied to at least one of these two strategies.  The trouble, of course, is that neither seems likely to produce the desired outcome.  Repeal stands no chance until 2013 at the earliest.  And there seems to be a fair amount of doubt as to whether the Supreme Court, having hitherto interpreted Congress's powers under the commerce clause as virtually unlimited, would even hear the challenges.  With this in mind, I would offer a third option: an amendment to the United States Constitution.

While this tertium quid poses difficulties of its own, it does bear the distinguishing marks of a desirable and, comparatively speaking, plausible political remedy.  As we all know, Article V provides that "Congress, whenever two-thirds of both houses deem it necessary, shall propose Amendments" to the Constitution.  Not even the wildest of wild-eyed Republican dreamers would dare predict a November electoral landslide overwhelming enough to yield two-thirds of both houses.  On the other hand, the remainder of Article V might give conservatives legitimate hope: "OR, on the Application of the Legislatures of two-thirds of the several States [Congress] shall call a Convention for proposing Amendments (emphasis and italics added)."  In addition to elegant and redundant proof of the Founders' dedication to genuine federalism, here we have assurances that if the entire national government aligns itself against the popular will, then the people have recourse through their state legislatures.  Publius (Madison), in Federalist 43, cites this portion of Article V as a key component of the federal system, for it "equally enables the general and the state governments to originate the amendment of errors" as those errors reveal themselves over time.

Rest assured that I do not lightly advocate the opening of the Pandora's Box of constitutional revision.  But so long as our progressive overlords insist on interpreting the Constitution as a general grant of powers that imposes specific limitations only, and the Constitution ceases to operate as a real check upon government at the national level, and a majority of Americans continue to cherish the Founding principles, I would suggest that we might have more to gain than to fear from such a convention.

For practical purposes, this means that Republicans, in order to effect constitutional change, would have to focus their energies on state legislative campaigns.  At present, the GOP stands dozens of states short of controlling the thirty-four legislatures necessary to call a convention or the thirty-eight necessary to ratify an amendment.  A closer inspection, however, reveals that more than half of the Democratic-controlled state legislatures could fall into the "toss-up" category this November, assuming the projected Republican landslide materializes at the national level.  In Alabama, for instance, Democrats currently hold a 61-43 majority in the lower house, and yet twenty-two of those sixty-one Democrats have taken their seats since 2002.  Perhaps no one this side of Michael Barone could calculate the probability of a Republican sweep through the state legislatures, but Mr. Barone, America's resident political encyclopedia, does have some encouraging things to report from the president's home state.

Adding an amendment to the United States Constitution ("Congress shall make no law...requiring citizens to purchase any goods or services, etc.") through proposals originating in the states would combine a multitude of virtues.  For one, Republican consciences could rest easy knowing that they did not sully the defense of their liberties by covering it in the stench of judicial review.  Second, state-level action eliminates the veto pen, rendering powerless the render-in-chief and all of his lacerations upon American constitutionalism.  Finally, it would remind all Americans that sovereignty resides in the people, that the people may divide and channel their sovereignty across multiple levels of government and through as many different institutions as they see fit, and that, if they so choose, they may alter the fundamental compact without the approval of a single member of the national government.
Categories > Health Care

Men and Women

Impossible Desire

Paris Hilton cannot be glamorous because she "is immediately 'knowable,' to the bottom of her (undoubtedly) well-shod toes."  Not so with Grace Kelly because true glamour produces a pleasure born of negative emotions, "the pleasure associated with not having."  Glamour is all about "impossible desire" and it "courts danger."   Virginia Postrel contemplates all this in a book review in the current Weekly Standard. Click here to see why I love the cover (to enlarge, click image on the right) and why Sonnet 106 is worth a read.
Categories > Men and Women


Rising to the Occasion of Calling Us to Rise to Equality

Pete makes a persuasive case below that the world of center-right punditry and right-leaning wonks needs to rise to the occasion presented by the passage of the health care legislation and provide detailed, scrupulous, and tightly woven arguments to persuade the people that the path presented in it is not a path rising to the idea of American justice and equality but, rather, a downward spiral falling into a different, undesirable, and unsustainable form of equality; one that will end up resulting only in an equality of misery.  Pete thinks it is unwise and dangerous to wait for a "savior figure" to come and make these arguments for us in a presidential or some other electoral context:

I think that the initial job of selling conservative approaches to health care will have to be a decentralized approach in which dozens and dozens of center-right elites make it a mission to explain health care to the public on many different platforms over of period of years. 

I find it difficult to argue with Pete, so I won't.  And, anyway, I agree with him.

But I will say that there is a hint in what he says (if not exactly a stated and firm opinion) that appears to give a bit of short-shrift to the level of statesmanship we are finally beginning to see emerge on the Republican side of the aisle--to say nothing of the even more impressive (and cheering) levels of goodness and wisdom we're seeing in the resistance of the people at large.  This is not to say that there aren't problems (and many, many potential problems) in the sometimes untutored rhetoric of decent and well-intentioned people.  But to the extent that good people can be persuaded, moderated, and encouraged to believe in their own ability to rise to the level of equality our Republic is designed to perpetuate, it's probably not the egg-heads Pete discusses who are going to do it.  Pundits, academics, elites (whatever those are) and wonks are all well and good--and they have their uses.  But (welfare reform notwithstanding) let us not forget that making persuasive arguments to the people at large in a politically mobilizing way doesn't usually number among them.  Those folks he describes are far better at talking to and amongst themselves--not that there's anything wrong with that.  (No, seriously . . . there's not.)

Somewhere along the way, however, the gap has got to be bridged.  One way or another, we have to--if not exactly depend upon--then certainly at least accept the role of chance in this.  We have to pray that someone (and, preferably, a few someones) rises to the occasion and to the opportunity to speak persuasively to his friends and fellow citizens.   It may be that a few of the sort Pete wants to see step up will emerge from their ivory towers and discover that they've got a common touch.  I hope so.  But that seems to me to be just as dependent upon the slings and arrows of outrageous fortune as is waiting for a statesman to emerge from a gaggle of politicians.  But I see signs of hope on the horizon.

Chance can't be mastered.  But maybe it can be encouraged.  And it may also be that our Republic, more than any other in the history of mankind, is constituted in such a way as to encourage the kind of chance I'm talking about.  There is something in us as a people and in the nature of the Republic that seems to call forth the kind of people we need at precisely the moment when it is desperately necessary. 

If the recent offerings of Paul Ryan may be used as evidence, I'd say we're beginning to see them emerge now.  People are weary--oh, so weary--of this constant talk of health care, mandates, insurance, premiums, Medicare donut hole, deficits and so forth.  We don't want someone to come at us with more of  this detailed back-and-forth talk to confuse and befuddle us--everyone senses that there is something, ultimately smacking in partisan BS in all of this talk, and from whatever side of the aisle it's coming from.  Enough, already.  We want someone who can get to the point and make us understand in very clear terms what, precisely, is at stake.  Of course the man to do this has to be smart as a whip on the details . . . no one who understands the accomplishments of Lincoln or Churchill could ever dispute THAT.  But God help us if he starts talking on that level in any other context than to smack down his naysayers in debate.  Spare me the boring speeches on the virtues of medical savings accounts . . .

Ryan gets that.  Here's a sample:

The passion against this intrusion goes beyond the mind-numbing numbers. Health care affects each of us in an intimate and personal way. The American people's engagement is driven by our deep aversion to the federal government's unprecedented reach into our lives. The entire architecture of this overhaul is designed, unapologetically, to give the government greater control over what kind of insurance is available, how much health care is enough and which treatments are worth paying for . . .

. . . The proponents of this legislation reject an opportunity society and instead assume you are stuck in your station in life and the role of government is to help you cope with it. Rather than promote equal opportunities for individuals to make the most of their lives, the cradle-to-grave welfare state seeks to equalize the results of people's lives.

Categories > Politics


The Bond Markets and Obamacare

The indefatigable Michael Barone has an excellent piece this morning on federal bond prices over the last few days. In short, U.S. bonds are ascending to higher levels of risk in the eyes of investors. Buffett's Berkshire Hathaway and Proctor & Gamble are now safer investments. Of course, the increasing expense for the government to borrow, made exponentially worse by Obamacare, raises the next move for Obama. The markets are obviously making decisions that incorporate the future effects of this legislation on U.S. fiscal policy. Thus, the bond markets, not the CBO, accurately reflect the true consequences of the Healthcare reform bill.

We now come to Obama's next move and this is to push for tax increases and some new tax to stabilize this process of escalating borrowing costs for the Treasury. I fear that on a push for a national sales tax or other increases in taxation Obama will be able to paint himself as the responsible one trying to manage government growth  and ensure broad equality. Conservatives will have to engage in persuasion, actually making real arguments and not just venting at Obama, across the electorate to stop this eventuality. The case will have to be made along the lines of Ryan's RoadMap, and the notion, classically expressed by Hayek that we must reintroduce the price system and its crucial role in allocating resources and services back into the healthcare market. To do this in a convincing fashion is now the real test.

Categories > Economy


Michael Ramirez's Latest

From today's Investor's Business Daily. 14975_image.jpg
Categories > Politics

Health Care

God heals, and the IRS takes the fee?

Should Christian Scientists be exempt from the requirement that all American citizens buy government-approved health insurance?
Categories > Health Care

Health Care

Predictable Consequences

Every bill has unintended consequences.  That does not mean one can't predict what that are likely to be, if one pays attention.  People don't like being told what to do, and will, if possible try to find ways to avoid laws. 

In the case of the increasing concentration of health care regulation and payment by the federal government, the predictable consequences is the likely increase of medical tourism.  The more the U.S. market is squeezed, the more incentive there will be for quality doctors to offer their services abroad, and let Americans who can pay come to them.  One interesting, and related, question, is whether would cover the costs. On one hand, it would probably be less expensive for each procedure. On the other hand, part of the reason why that would be the case is that doctors would be less well regulated.

On the other side, would a U.S. citizen be allowed to buy a basic, high-deductable, catastrophic-care policy from a foreign company?  Would that qualify as meeting the insurance mandate, assuming the Courts don't have the guts to strike it down.

Categories > Health Care

Health Care

The Broad Right

I think you should check out this thread just for Art Deco's comments.  I agree that it makes no sense to look for real leadership on health care policy from the Republican congressional leadership.  But I also don't think that the failure to familiarize the public with free market-oriented health care policies is primarily a failure of Washington leadership. I think that leadership in the sense of explaining critiques of Obamacare and potential alternative market-driven policies will have to come, if it does come, from the broad center-right.  That means periodicals, talking heads who appear in the media, conservative talk show hosts and politicians outside the top Republican congressional leadership.  The model I'm thinking of is closer to the welfare reform debate from the mid-80s to 1994.  The burden of selling and implementing conservative policies was carried first by public intellectuals and academics (to include Charles Murray, Lawrence Mead, George Gilder, Robert Rector and others), backbench members of Congress, and Republican governors.  Those folks basically won the argument first over the then-existing welfare system's destructive effects and then developed reform approaches based on behavioral conditions and time limits (even if Gilder and Murray did not approve of this approach).  The Republican Presidents and top Republican congressional leaders of this era (like Bob Dole and Bob Michel) had little to do with shaping public opinion on this issue.  I remember reading that Wall Street Journal editor Robert Bartley had said it took x number (I don't remember the number but it was alot)  of editorials to get a policy suggestion enacted.  I think that the initial job of selling conservative approaches to health care will have to be a decentralized approach in which dozens and dozens of center-right elites make it a mission to explain health care to the public on many different platforms over of period of years.  The other approach would be to wait for some savior figure who can, through eloquence and determination, win the public over in a presidential campaign.  I don't think it is safe to assume that such a figure exists,  but even if there were such a figure, coservatives should still try to prepare the way and make his paths straight. 
Categories > Health Care


"F" Words

No, I'm not referring to Biden's blundering use of THAT "f" word today--which only goes to prove that there must be something about being "Vice President" that tends to make some guys take it literally when it comes to the "vice" of swearing--especially near a live mike.  So now it's a bipartisan sport.  Time for some of our trolls to let it go, I guess.

I refer, instead, to Biden's use of this "f" word in this sentence during his remarks at the signing ceremony this morning:  "History is made when a leader steps up, stays true to his values, and charts a fundamentally different course for the country." (Emphasis mine).

It is revealing, no?

Let me also question the opening chant of the assembled Democrats which included another "f" word:  " Fired up!  Ready to go!  Fired up!  Ready to go!"

Really?  Back in my cheerleading days, we used to do a chant like that . . . but then, we were in high school and our objective was to crush our opponents on the basketball court or football field--not to govern a nation.  I realize that this insane legislative process has been compared to "March Madness" . . . but let me also suggest that this chanting by the Dems is stretching just a bit too far to match the metaphor.   
Categories > Politics


Goodwin Liu: Obama's Most Radical Judicial Nominee

It is difficult to imagine the Ninth Circuit as any more radically liberal than it already is. Despite a few stellar judges, the Court is full of liberal activists who have earned it the reputation of having the highest Supreme Court reversal rate of any court in the nation. But, with his latest judicial nominee, President Obama just may do what seemed impossible.

There are many red flags in the judicial record of Ninth Circuit nominee Goodwin Liu, who is Associate Dean at the University of California Berkeley Law School.

Judicial Philosophy: Though Liu has stressed "constitutional fidelity" in several articles, he has also stated that he "envisions the a culturally situated interpreter of social meaning." While this statement makes it ever so clear that Liu is an academic, it also makes clear that he does not understand the judiciary's role. Judges are not interpreters of "social meaning." They are interpreters of the Constitution and laws. Regrettably, it is just this sort of loose theory that allows judges to ignore the plain and ordinary meaning of the Constitution and statutes, and to instead replace it with what they personally think is best based upon their subjective interpretation of "social meaning."

Constitutional Welfare Rights: Liu has a strong penchant for redistribution, and it is clear that he believes judges should play a role in it. In an article titled, "Rethinking Constitutional Welfare Rights," he lays out his vision for the creation of a constitutional right to welfare. He desires a "reinvigorated public dialogue" about "our commitments to mutual aid and distributive justice across a broad range of social goods." Once this dialogue takes place among policymakers, Liu wants the courts to recognize "a fundamental right to education or housing or medical an interpretation and consolidation of the values we have gradually internalized as a society."

In another article, he stated that "negative rights against government oppression" and "positive rights to government assistance" have "equal constitutional status" because "both are essential to liberty."

Unfortunately for Liu, our Constitution's Framers disagree. They recognized that these two concepts are indeed mutually exclusive: if we allow the government to "assist us" by giving it a redistributive power over our personal property and the power to control health care, education, etc., individual liberty will necessarily erode. Indeed the Framers sought to prevent such redistribution by limiting government's power and providing what Liu considers as "negative" property rights. These protections have already been eroded by activist judges, and it is clear that Liu would like to erode those protections still further.

Radical on Death Penalty: Liu has been outspoken in his opposition to the death penalty. Kent Scheidegger of the Criminal Justice Legal Foundation has stated that, "To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case."

Reasonable people can disagree on death penalty policy, but it is not up to judges to determine that policy or undermine it through judicial obstruction. The American people decide through the democratic process whether their respective states will utilize the death penalty. The judge's role in capital habeas corpus cases in the federal court of appeals system is predominantly to assure that grave errors were not made in the process--the questions of guilt or innocence and sentencing are reserved first and foremost for juries and are decided by multiple state and federal appeals before a federal appeals court judge takes a first look at the case. But too many activist federal court of appeals judges treat death penalty cases like they are hearing them de novo--like it is their job to put themselves in the place of the jury, so that they can impose their own preferences, rather than simply review for actual legal errors. Given Mr. Scheidegger's warning, there is little doubt that Liu would be just this sort of judge.

Racial Preferences and School Choice: Ed Whelan has pointed out that, in an article titled "School Choice to Achieve Desegregation," Liu never embraces or even states his agreement with the Supreme Court's 2002 ruling in Zelman v. Simmons-Harris that school-choice programs that include religious schools are constitutional. However, Liu is willing to embrace school choice if it is directed to the illegal end of ensuring racial quotas in schools. For example, Liu advocates "a funding set-aside in federal and state charter programs to create and reward charter schools that reflect the racial and socioeconomic diversity of the metropolitan area...where they are located." These set aside programs should "use the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity."

Liu's other writings also make clear that he would impose racial preferences directly if he could.

Lacking Experience: Ed Whelan and The Washington Times have noted that Liu does not even meet the standard for federal judgeships outlined by the American Bar Association, which includes substantial courtroom and trial experience and at least 12 years practicing law. Thirty-nine year old Liu has no experience as a trial lawyer and has not even been out of law school for twelve years. (The fact that the ABA nonetheless rated him "well-qualified" suggests that their ratings are perhaps based on something other than qualification.)

Many pundits are speculating that the Ninth Circuit may be Liu's stepping stone to the Supreme Court. If this is the case, he could potentially be one of the most activist justices the High Court has seen yet. Even the Washington Post admits that Obama's other federal nominees have been "more moderate" than Liu.

Liu's confirmation hearing before the Senate is tomorrow.

Cross-posted on the Foundry.

Categories > Courts



For reasons ranging from the sublime to the ridiculous the conservative movement must focus on the politics of repeal. Failure to make this argument because of the difficulty and challenges involved in achieving repeal of Obamacare are I believe beside the point. Many conservative intellectuals will point to the difficulty of rolling back elements of the democratic welfare state. While the facts of this particular argument are hard to ignore, there are crucial moments will retrenchment, if not repeal, of welfare state programs are eminently possible. I believe we are in such a moment. Reuven Brenner of McGill Business School has written on these possiblities in the course of his broader reflections on democratic finance and its ability to level government spending and power. In short, voters will turn on profligate government spending when they clearly understand that the funding model for these policies is no longer juiced. This requires information and awareness that an entire political-fiscal-social model is no longer viable. To refuse to act is to accept death. We seem obviously to be at the end of a fiscal model that has powered government spending and its entitlement programs for decades. Moreover, the voters are aware of this fact. Assuming the accuracy of Brenner's reflections, and solid precedent is available, even in our own country, then repeal is not just a strategic political calculation to energize activists and focus the tea party movement, but is something doable that will stabilize our country. If not, then conservatism in America will again find itself playing on terms set by the Progressives. We can look forward to another generation of arguments where we eventually do nothing but urge adjustment and try to retard rapid fiscal growth.

Categories > Politics

Health Care

The Older, Deeper Error

David Frum is very wrong in his argument that Republicans should have tried to compromise with the Senate health care bill as the basis for some right of center tweaks.  The problem was that a national version of state-mandated comprehensive health care prepayment really is a move in the wrong direction whether it is financed by taxes on income, investments, energy (seemingly Frum's preferred method) or high-end health insurance policies.  And Obama wasn't going to go for a real left/right compromise (one that might have included direct subsidies for health insurance with opening up the market for HSAs and high deductible policies).  Obama wanted a reform that would be transformative from the left.  His first preference was for a straight single payer system.  His second choice was for a public option that would get us to single payer on the installment plan.  His third choice was the corporatist arrangement we just got.  This was the leftmost bill he could get past his swollen congressional supermajorities.  It was never about the Republicans (though it would have been nice if they would have signed up for some bipartisan cover).  It was about what "moderate" [spitting sound] Democrats could be bribed and browbeaten into accepting.

I think that the strategic error made by conservatives and Republicans was more subtle and  older.  I think that if conservatives and Republicans had done a better job (and worked alot harder) at explaining right-leaning ideas about health care policies, the Democrats would not have been able to seize the initiative in quite this way even if with their supermajorities.  There is a reason why Obama and Pelosi aren't trying to return to the pre-Reagan marginal tax rates or launch a principled frontal attack on 1996's welfare reform or try to ban a bunch of rifles.  Conservative victories in the realm of public opinion placed limits on what a liberal President and liberal congressional leadership are willing to do.  The conservative error was in things that were unsaid and undone since the failure of Clintoncare.  So much time time wasted on arguments about my tax cut is better than your tax cut, compassionate conservatism, John Kerry looking French, and elitists picking on Sarah Palin because she grew up in a small town and didn't go to an Ivy League school.  Now, when conservatives try to explain the Ryan Plan or the Goldhill strategy of the incremental Levin-Capretta strategy, they start at square zero with the average American,


Categories > Health Care

Health Care

Socialism by Construction?

One Democratic talking point about the health care bill is that it is not a national takeover because citizens will still be purchasing insurance from private corporations, rather than simply going to a government paid doctor.  At some point in time, however, an industry grows so heavily regulated that the businesses are no longer truly private enterprises.  Perhaps utilities fit this bill.  Hence we should ask whether, after these new regulations become law, insurance companies are still truly private corporations.

I am reminded of a bit of wisdom, or something like it, from the editors of the Legal Papers of John Adams: "It was common 18th-century practice to divide the proceeds of such suits, a third each to Governor, informer, and Crown. In many situations, fees and forfeitures were used to encourage an element of private enterprise which helped to keep salaries low and place the cost of government on those who invoked its powers."   To call the work by government officials, backed by the powers and instruments of law "private enterprise" because they could exercise individual initiative, is a perversion of language.  The same might be true of health care in the U.S.

Categories > Health Care

Health Care

Health Care As A Generational Argument

National Review has a symposium on what to do in the wake of Obamacare.  I mostly agree with Tevi Troy's idea that Republicans should push for particular changes to the health care bill in the direction of tort reform and the liberalization of the health care market to allow the offering of low cost high deductible policies and connecting those policies to a relentless political operation that tries to sell the benefits of those policies to the public.  The changes won't happen in 2011, and they might not happen in 2013 or 2015, but if the public can be won over to such policies, the chances of moving away from Obamacare increase a lot.

The first instinct among many conservatives is to argue for a simple repeal of Obamacare.  That is what most conservatives want - even more than any particular reform.  Repeal also has the seeming advantage of uniting conservatives with nonconservatives who were happy (or at least not too unhappy) with the pre-Obamacare status quo.  The problem is that this alliance of conservatives and cautious nonconservatives will weaken with time if it is based on mere opposition to Obamacare.  No matter what happens in November, Obamacare will not be repealed for as long as Obama is President.  The veto pen will see to that.  The cautious nonconservatives will, over the next few years, get used to the new status quo.  Most Americans are happy with the quality of their medical care and that quality will not be change much or at all in the next few years.  Fears of government rationing are well founded, but it will take years and years of overpricing and overuse to get there.  Many of the cautious nonconservatives will become invested in the new system, and only a well argued positive alternative will get them to to take the risks of major change.  And soon enough, changing back o the pre-Obamacare status quo will be just as big a change as moving forward to a more free market-oriented alternative.

My great worry is that conservative passion about the health care and the public's attention to what conservatives have to say will be wasted in an unproductive cause that lets conservatives vent their spleen in the short term but leaves them with no real political or policy gains.  I look at the Sotomayor confirmation hearings.  Conservatives could have used them to highlight widely shared concerns about judicial liberalism related to issues like the Second Amendment, partial birth abortion, and the death penalty.  Sotomayor might have dodged, but the public would have heard conservatives on those issues and every time Sotomayor voted with the Supreme Court liberals on those kinds of issues, conservatives would have been in a stronger position to tie Obama and the Democrats in general to her positions.  Conservative instead wasted too much time and energy on the "wise Latina" crack.  It just felt too good to tweak liberals that one of their own had made such a slip, even though that attack didn't go anywhere (it was never going to sink her nomination and it is doubtful she will be some kind of racist Latino supremacist from the bench) and might have alienated some Latino voters. 

I suggest that the best course for conservatives (and that includes the Republican leadership, prospective 2012 Republican nominees, and the right of center pundit and popularizer community) is to start making the long term investment of explaining to the public the benefits of various conservative health care reforms.  Paul Ryan, the think tankers, and the people at National Affairs can't do it all by themselves. 


Categories > Health Care


The Census and Obama Care

Over the weekend, I was on the exercise bike reading the March Madness issue of Sports Illustrated when I was surprised by a full page ad placed by the U.S. Census Bureau. Written in an average Joe script, it said: "If we don't know how big our community is, how do we know how big our hospitals need to be?" Coming on the weekend ObamaCare passed, this ad almost perfectly expresses the "administrative despotism" that Tocqueville warned against. First of all, it is so reasonable and caring, who could be against it? I was enjoying the lowly pleasures of college basketball, but even I can agree with my neighbor, Mr. Census Bureau, that "we" should have hospitals big enough to serve "our" community.

On the other hand, the ad implies that a national census is the only or best way to determine how big any community is. It also suggests that the size of one's community is the sole or main consideration in determining the size of hospitals. Sure, the Census Bureau could add other considerations to the mix, but the point is that central planning inevitably simplifies and standardizes. And that - central planning - is the ad's most important premise: one arm of the Federal bureaucracy will supply the information that another arm of that bureaucracy needs to deliver services. The ad implies (at least to someone in small town Ohio) that decisions about the size of hospitals should be made by some distant experts, or at least with their information and under their guidance. And that mix of compassionate and gentle though irresistible suasion from outside is the problem. The more the decisions that affect our lives are made by others, Tocqueville argued, the less opportunity each citizen has to use and develop his or her own faculties and the less attached that citizen will be to his or her own community. The immediate danger is not tyranny, but that in turning over more and more decisions to the government shepherd, we become less and less like self-governing citizens and more and more sheep-like.

Categories > Politics


CNN Poll

In case you don't get that there will be huge political consequences--and I don't mean just for the 2010 elections--to passing a health care bill by the narrowest of margins, with no GOP support, look at this CNN Poll just released: 59% opposed the health care bill, as the House was debating it and about to pass the bill into law.
Categories > Politics


An Oldie But Still Moldy

Well, the airlines (the weather, really) kept me from making it to Ashland today, so I have a quick minute to blog.  While I try to calm down about the health care vote, made possible by the cowardice of the appropriately-named Congressman Stupak, I pass along a short squib I wrote for the Washington Post on Sunday on my pick for the worst political memoir.
Categories > Politics

Health Care

Some folks who won't be thanked in the victory speeches, but should be

We're sure to hear a lot of oratory in the coming days about yesterday's great legislative accomplishment.  The administration will be thanked for its relentless pressure on wavering Democrats, as will Nancy Pelosi and her lieutenants.  And we'll certainly hear a great deal of praise for Bart Stupak for the outrageously low price he set for his alleged pro-life principles.  But there are others who will no doubt be left out of the speeches, even though they deserve the thanks of the Democrats:

1) The Republican leadership in 2003, for meritorious service in forcing through a massively expensive prescription drug benefit for senior citizens, using every legislative trick in the book to overcome bipartisan opposition.  This undoubtedly made GOP criticism of the current bill--on grounds of expense, as well the Democrats' tactics--seem partisan and hypocritical.

2) Anthem Blue Cross of California, for its invaluable assistance in making the Democrats' case for them by suddenly announcing in February that it was jacking up its premiums by a whopping 39 percent.  From the White House's perspective, the timing of the rate hike couldn't have been more perfect, as the Senate bill looked to be in serious jeopardy.

3) Finally, special recognition must go to the unnamed yahoos in the crowd of protestors outside the Capitol Saturday who thought it was a good idea to hurl racial epithets at members of the Congressional Black Caucus.  What better time to resuscitate the old chestnut that opposition to Democrat policies equals racism?  How con-VEEEN-ient, one might say....

Categories > Health Care


Democrat Bonus, GOP Opportunity

The Dems get rid of their "pro-lifers," who will be wiped out in 2010. Republicans get to run against "deem and pass" Dems for a good decade or so, at least, if they understand how to teach constitutional government and the rule of law.  Impeach Obama for signing an executive order he knows is unconstitutional?  What about Bush signing McCain-Feingold into law, while saying he believed it unconstitutional?  Republicans need to convince themselves about the Constitution before they can preach it to others. 

Of course now GOP can demagogue about how every medical tragedy and disparity in treatment results from Obamacare, just as the Dems did with insurance companies.   

See Paul Ryan for a higher road.

Categories > Politics


Another Level of Weakness and Opportunism

So the House vote is going pretty much as I figured.  The moderates are folding to their party leadership.  But I didn't think that Stupak would sell himself so cheap.  Just goes to show that when it comes to our current politics, you can't be too cynical about or contemptuous of those politicians who get the label of"moderate" (or even worse, pro-life Democrat).


Categories > Politics