US Health Care Judgement and How not To Oppose Big Government

The Supreme Court of the United States earlier today announced its judgement regarding the constitutionality of ‘Obamacare’, the core part of which is a mandate for everyone to purchase health care insurance or face a fine through the tax system.  The Court has decided that most of Obamacare, including the mandate, is constitutional. The constitutionality of the mandate has been justified on the basis for he taxation powers accorded to Congress in the Constitution, and not the power to regulate interstate commerce, which is how it had been justified.  So what the Court said was constitutional was the levying of taxes to penalise people who don’t purchase federally approved health care, after Obama had been very emphatic that the mandate was not a form of taxation.  

The litigation against Obamacare is associated with the libertarian law scholar Randy Barnett.  Barnett is not just libertarian, but anarchist in orientation, which makes it interesting that he specialises so much in arguments for an ‘Originalist’ (in line with the publicly understood intentions of the framers) view of the Constitution.  The 13 enumerated powers of Congress in the Constitution are surely 13 too many for Barnett.  It’s  not that unusual for originalist arguments to be put forward by those of anarchist inclination.  This and over oddities of Origanalism is something I keep meaning to blog about, and will soon in line with recent blogging on Hayek, Europe, law and so on.

Barnett, and others on his side (check Cato@liberty and the Volokh Conspiracy blogs), were warned by left leaning commentators that victory in the their anti Obamacare litigation would make it more likely that something worse would happen from the point of view, that is an expansion of the Medicaid federal program of health care for the poor, so that the US would move closer to tax funded universal health care.  At Volokh and Cato, I’ve seen that argument ridiculed.  That fact is the wanting was proved substantially correct today.  The Supreme Court has decided that it is constitutional to tax at a federal level to implement social welfare programs.  No one in the ‘liberty community’ seems to be conceding the obvious correctness of those warnings, and the inherent rashness of trying to use the Supreme Court as a way of overturning a social welfare program passed by Congress.  Surely the Constitution should largely be for regulating relations between parts of government, and blocking obvious deviations from basic rights and constitutional propriety.  After decades of increasing welfarism in the American Republic, it is a bit strange to argue that one more bit of welfare legislation is an attack on liberty and the constitution (not necessarily the same thing actually, but that’s something the Originalists will never concede), and indeed as some people claim some apocalyptic victory for tyranny.  

Of course the Originalists fervently believe that Obamacare is a gross departure form constitutional propriety, but really their reaction would only be justified by laws that allow arbitrary confiscation of property and arbitrary imprisonment, and extreme acts of government like taxing all incomes of all kinds at 99% from the first cent.  The kind of welfarist social democratic measure that characterises Obamacare is not a suitable object of such extreme attacks.  Is it the best health care policy?  No, for reasons that include the following.

1.  America is a large federal Republic that benefits from choice and competition between the 50 states regarding  social policy, taxation and various other matters.  So there is no need for a federal welfare state.

2. Obamacare pushes up the costs of healthcare by putting more conditions on health insurance and pushes people on just above poverty level incomes to make poverty inducing financial sacrifices for health insurance that provides more than they want.

3. Obamacare does not address issues that push up health care prices, including excessive requirements that routine medical car be carried out by doctors rather than nurse; tax exemption to companies for providing health insurance to employees, which has the effect of destroying incentives for users of health to check the costs and make decisions about which package is most cost effective.  

4.  A better option (at federal level if there must be a federal system, and as an example for states otherwise) is to give out ‘vouchers’ to purchase health care, allowing everyone to make choices with regard to different trade offs on cost and benefits of particular packages.  

These issues are a matter for policy debate, not shouting about unconstitutional tyranny and the intentions of slave owners in wigs and tricorn hats (a harsh way to describe the framers of the Constitution, not the only way to describe, and not a reason for ignoring original intentions, but an aspect that should never be overlooked).  

The results I’ve seen so far on the libertarian, and more general small government scene, include denial and anger.  The denial is the refusal to admit a defeat and to admit that Barnett was wrong to ignore left wing warnings.  The denial takes the form of saying that non one will ever support federal tax and welfare, so that attempts to bring it in by deceit (as some small government fans see it) through a mandate have failed and federal welfarism has failed for ever.  The trouble with that is that there is a federal welfare state, introduced through legislation under Franklin Delano Roosevelt in the 1930s and Lyndon Baines Johnson in the 1960s.  If they could do it then, others can do it now and in the future.  For those who think that somehow that was all back in the 30s and 60s and could not happen again, I just point out that the last Republican president, George W. Bush, introduced a new federal ‘entitlement’ much more recently, subsidies purchase of prescription drugs for senşors.  Obama has found that mandating purchase of welfare insurance is politically toxic, so will introduce further welfarist schemes (if any) on the basis of federal tax and spend, as will future presidents sympathetic to big government.  

The anger is denunciation of the Supreme Court for justifying tyranny, destroying libert… oops sorry İ fell asleep there.  I really can’t stand this kind of rhetoric.  It’s all culminated in a rather pathetic obsession with broccoli mandates.  This as funny for five minutes when it first came up, but has now become a hook for obsessives, and a substitute for thought.  There are issues with governments trying to control people’s health choice, but no government  has told anyone in the democratic world they have to purchase healthy vegetables, and it’s not going to happen anytime soon.  

The ‘liberty’ movement (which I support in a very moderate way) needs to focus on policy debates and outcomes, not ranting about constitutionalism and tyranny, and not kidding itself that there will never be a democratic majority for more tax funded welfarism.    Certainly not at a time when big government left wingers have picked up on right wing originalism and found that they can make good cases for supporting.what they want on originalist grounds.  

Another bit of wishful thinking is that small government advocates will rally behind Mitt Romney, so ending Obama’s big government presidency.  Romney introduced the first version of Obamacae when he was governor of Massachusetts, and will ave trouble with his record of Obamacare, We should also note that Gary Johnson offers the strongest yet Presidential candidate for a libertarian point of view and the very divided nature of small government advocates in America with regard to drugs, gay rights, religion in schools, defence, national security…. 

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