I'm starting this blog to avoid being too much of a comment-box hog on the blog of the American Chesterton Society. Specifically, I want to respond to a message by Davymax3, who was responding in turn to an obnoxiously long series of messages by me. I had said that the main problem with government is not that it's too big; davy had challenged me to defend this heresy; and we are now arguing about a range of issues, from Katrina to health care reform.
Now, Davy...
On Katrina:
It's not at all clear to me that New Orleans and Louisiana alone had enough resources to prepare for and respond to a disaster like Katrian. If you want me to believe that, I'm going to need some evidence. Regardless, though, I'm sure you would agree that the slow state and local response was justified or made inevitable by the mere existence of FEMA. The state and local governments are accountable to their voters and could have asserted their share of responsibility.
And whether or not the local and state governments had sufficient respources of their own, and whether or not the federal government's customary level of responsibility for disaster relief somehow inhibited the state and local efforts, surely you would agree that the federal govenrment, by principles of subsidiarity or just by the golden rule, had some kind of supporting role to play. And the fact remains that what the federal government did, it did badly. The media did a very good job of exposing this, and evidence should be readily available on a cursory Google search. The federal government's response was too incompetent to be blamed on mere bigness; inexpereinced people were in charge, important pirorities were overlooked, and the government simply hadn't developed to capacity to effectively support its people in the event of this kind of disaster. It was not just big governent, but bad or insufficient government.
On corporate "evil":
You say I described the health care companies as evil because I said they prioritize profits over patients. But I don't think we can describe people as evil simply because they run for-profit businesses for profit. that's they're paradigm; they are accountable to shareholders, for whom they are trying to do a good job. I know people in the insurance people--I even very briefly worked in it myself--and most of them strong me as good, caring, well-intentioned people. None of them struck me as personally evil. Is there an unintended systemic evil in the structure that allows for-profit companies to make healthcare decisions without much regulation? There may be, though I'm not sure the word "evil" is helpful at this time and under these circumstances. I'm not interested in demonizing anyone; I'm interested in developing a system that works better for the public.
On statistics:
One can always impute bias to statistics, but tell me where to find statistics that trump WHO's and support your claim that we have "the best health care in the world." Immigrants I know from Canada and Europe have many good things to say about the health case.
There are many people who don't meet the income guidelines for Medicaid but still can't afford insurance--especially if they have "pre-existing" coverage. Massachusetts mandates coverage but has been giving a lot of hardship waivers; why is this, if insurance is so affordable to everyone who doesn't already have Medicaid or Medicare?
On the insurance mandate:
If your uninsured friends do get sick, they'll get expensive (albeit ineffective) emergency room care that is subsidized by the rest of us. And if they are young, healthy people, their non-pariticipation in the insurance pool is making insurance more expensive for the rest of us. I believe that it is reasonable for society to decide, through our government, that their non-participation is an irresponsible drain on the public treasury which they much make up through an excise tax. I don't think that this reasoning would allow the government to "mandate anything"; I don't see your reasoning for that.
Lowering costs:
The current legistlation doesn;t do as much to control costs as I would like. The mandate would probably help; a larger insurance pool with more young and healthy participants will help to bring insurance costs down.
Changing health care delivery would also help. There seems to be a lot of agreement among experts that our system offers too much incentive to order unnecessary tests and procedures.
If we had a single-payer system or a strong public option, the government could negotiate reasonable rates with providers--as has been done in other industrialized countries. Paying for health care through taxes could be cheaper in that it would relieve businesses and their employers of responsibility for premiums.
Quality:
Of course technological innovation is key, and of course the U.S. must continue to drive it. No one is arguing with that. In fact, the stimulus act invested in health care innovation, and so would the current legislation.
Some of the measures that have been proposed to reduce costs--such as better use of information technology and more research on best practices--would also contribute to improvement of quality. So would the legislation's emphasis on preventative measures. The current legislation doesn't socialize the pharmaceutical companies (or any other sector of the health care industry); drug companies would still do research.
Making the government ours:
I've said that there's fat to cut out of government, and there are certainly areas in which the governmetn exerts too much control. I'm glad the the current Justice Department has relaxed its position on enforcing federal laws against medical marijuana. The idea of withholding federal transportation money from states that don't agree to certain driving policies seems defensible to me; it's reasonable to expect individual states to be good partners in protecting the safety of interstate transportation. I would offer "don't ask, don't tell" as another example of an overly intrusive government; our government should not be in the business of regulated how members of the armed forces define their sexuality.
I think that in the fullness of time, a smaller government is a great goal. But I don't think we'll ever have anything like a "distributist" society if we can;t first, and transitionally, make government into a counterweight against big business.
As President Obama said in his inaugural address, "The question we ask today is not whether our government is too big or too small, but whether it works -- whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified."
On being a demogogue:
I don't think my arguments are popular enough to constitute demagoguery. :) The CFP writer, I think, is contributing to an extremist subset of conservatism that is rising to power by appealing to people's cynicism and making a slew of false claims (from "death panels!" to "Obama's a foreigner!") that add up to "tyranny." If you Google this writer, you can see him asserting or taking for granted many of these claims, which have been widely debunked. I think he and his colleagues are demagogues. I don't think, though, that they have a monopoly on demagoguery; you can find examples on the left as well.
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As for Healthcare:
ReplyDeleteYou're absolutely right about the federal government's response not being great, and that they were incompetent! This is my point. A government who's job it is, is to come and save cities in times of tragedy will almost always be incompetent. I don't have the facts and figures on hand, but during the time it was repeatedly shown by the media that New Orleans was very negligent in their preparation. Louisiana was negligent in making sure buses and other resources were sent to New Orleans in a timely fashion. I don't think we should try and fix the federal government by making it efficient. It's always going to be bad at that. I think we should shift responsibility to a more efficient arena, which is the state level. Louisiana most certainly had the resources to defend itself much better than it did against something that was inevitably going to happen. It's like if when Vesuvius erupts again and the inevitable thousands in Pompeii died, everyone blamed the Italian govt and Berlesconi. It's not where the blame should lie. The mere existence of FEMA takes responsibility away from the state. When it shouldn't. The federal govt. if anything should be there to support and aid the state's efforts.
"But I don't think we can describe people as evil simply because they run for-profit businesses for profit."
ReplyDeleteI never said that. I think we should certainly blame a company if it puts people's lives at a lower value than their profits. Big difference.
"I'm interested in developing a system that works better for the public."
Okay, and what particularly about the current healthcare bill do you like that isn't supported by both sides of the aisle?
On the statistics claim. It's not my burden to come up with statistics just because you brought up biased ones. You brought up statistics. I say their faulty and I won't accept them. It's not now up to me to find better ones. That would be way way way to much work. And like I said before just because someone isn't willing to pay for something doesn't make it unaffordable. You keep conflating those two, I made this point in my previous post.
ReplyDeleteYou don't see my reasoning! Are you serious? Do you know how the American Government is supposed to work. There's this document called the Constitution it lists what powers the government has and which ones it doesn't. Please point me to where it says it can mandate that I get Health Insurance. Also, my point was that if they can do this, they can mandate anything. Certainly then, they could say, hey, davymax, you're a fatass and you're a drain on a society, you have to pay a tax. Are you okay with that?
ReplyDelete"a larger insurance pool with more young and healthy participants will help to bring insurance costs down."
ReplyDeleteOf course it would, but that doesn't make it just!! On what basis do you make judgements. And then you wonder why someone calls you a socialist. If that isn't socialist I don't know what is.
"There seems to be a lot of agreement among experts that our system offers too much incentive to order unnecessary tests and procedures."
Yea, until that procedure saves a life.... That's my point about our system, yea 99/100 tests for cancer are going to be negative, but is that necessarily a bad thing? We pay for what we get.
"If we had a single-payer system or a strong public option, the government could negotiate reasonable rates with providers--as has been done in other industrialized countries."
Okay, again, if you could respond to the argument I made before about how this doesn't seem to work very well. The government doesn't negotiate deals with medicaid providers. It votes on how much they'll get paid, and you either take it or leave it.
"Paying for health care through taxes could be cheaper."
How would paying for it through taxes magically make something cheaper? That doesn't make any economic sense. The cost of something if anything would go up once a disinterested 3rd party is buying it. It seems like common sense, no?
"Some of the measures that have been proposed to reduce costs--such as better use of information technology and more research on best practices--would also contribute to improvement of quality."
ReplyDeleteI disagree, I think it will lead to less innovation, because the government will be mandating which "best practice" I should receive, thus there will be less innovative practices and less innovation.
"The idea of withholding federal transportation money from states that don't agree to certain driving policies seems defensible to me; it's reasonable to expect individual states to be good partners in protecting the safety of interstate transportation."
Yea, it makes sense if you buy into their premise. I said this before. Why should the Federal Government be taking money from a state's citizens, then holding it ransom until they accept a particular law. It's not their money. They took from it's citizenry money by threat of force, and then say, ok, I'll give it back to you if you do what I say. That's absolutely ridiculous. I don't know what people are so complacent to this idea. The only way I could even somewhat agree with you is if the Federal Govt. bought the land to build the roads and said you can't let people drive drunk on our roads. The idea of an 18 year old drinking is so tangential to safe driving on roads. Just like in the example before, what's stopping to government from making fat people work out or making people not smoke, or saying, no more fatty cheeseburgers, or no more alcohol at all, or only 5 blog posts a day, or only 3 hrs of tv... The least goes on and on. Where do you put a limit to what the federal government can do? Is there any limit? Do you care about the concept of limited government? I really have no idea what you are thinking.
"I would offer "don't ask, don't tell" as another example of an overly intrusive government; our government should not be in the business of regulated how members of the armed forces define their sexuality."
ReplyDeleteYour logic is completely backwards. If anything this would be one area in which the government should have a say. Whether you agree with their premise or not, they've determined that outwardly gay soldiers would unnecessarily lead to complications on the battefield. I tend to agree with them. If I were fighting with my wife, I'd be much more interested in protecting her than anyone else, along with a myriad of other complications. Also, you're statement about what the government is doing is flawed. It's called "dont' ask, don't tell," not, "don't be gay." The government is in fact asserting that the affirmation of your sexual orientation has nothing to do with being a soldier.
"I think that in the fullness of time, a smaller government is a great goal. But I don't think we'll ever have anything like a "distributist" society if we can;t first, and transitionally, make governmetn into a counterweight against big business."
ReplyDeleteBut it's impossible, you can't separate hudge and grudge. I've asked you several times if you can give me an example of when big government has consistently checked big business in favor of individuals or smaller businesses? If not, why do you think we'll all of a sudden be able to do it now. We need to change people's mindset and convince them that smaller government and smaller businesses go hand in hand and that we must support both with both our vote and our dollar.
To answer your question posed to Brian, does it work? No, of course it's not working well right now. Some thing it does alright with, but many of the things it's doing it's just terrible at. Obama is implicitly agreeing with that. We need a more effective government, you do that by giving that power to those best able to make those decisions. Again I'll ask you, why should the federal government be able to decide for the entire country that the drinking age must be 21. All because they took money from them? That's not just. That decision should be being made on a more local level. This goes with a myriad of other issues. Why you think it's best made on a federal level is beyond me. Do you really think that?
As for the demagogue thing. I'll take your word for it on his other writings. I was only basing it on that one article, so I suppose not much else to say one that one. Woo hoo! One down!
ReplyDeleteLet me take that last point first. The Constitution vest in the Congress "Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." It's not very specific about what events can or cannot trigger an excise tax.
ReplyDeleteI'm not a lawyer, but as I understand it, the current bill would place an excise tax upon the uninsured to "provide for the...general Welfare" by helping to fund the healthcare costs that have been inflated by these taxees' non-participation in insurance.
It's not the world's most elegant solution, but I think it would pass constitutional muster, even with the conservative majority on the Supreme Court.
Frankly, I'd be happy without a mandate; it's a concession to health insurance companies, but it seems to be a necessary concession at the moment. Until we have a single-payer system, it's going to be hard to require companies to cover pre-existing conditions without getting everyone into the coverage pool.
I suspect the Daymax is a Fatass Act of 2010 would be struck down as an act of attainder. I hope so, as I would be extremely vulnerable to any legislative sanctions against fatassery.
I would probably be OK with excise taxes on junk food, though.
Katrina:I don't doubt that Louisiana and New Orleans could have prepared better than they did; I seriously question whether they had the resources to prepare well enough, and I question whether their lack of preparation can be blamed on false security offered by the feds.
ReplyDeleteThe federal government has often--even in GW Bush's first term, as well as during the Clinton Administration--responded much better to disasters than it did to Katrina, as has been widely attested in the press. Part of the difference was undoubtedly the sheer vastness of the disaster, but FEMA was also neglected and put under inexperienced leadership during the second term, and the administration was not engaged with either disaster prevention or response.
People who don't believe in government tend to run government badly, thus "proving" their own self-fulfilling prophecies.
Would the federal government have been more helpful to Katirna if it had been smaller, with fewer resources? It's ahrd to see how. Lean and mean is great, but you have to have some muscle. If FEMA had been a little "bigger"--with more resources, more and better0trained personnel, better developed plans, etc.--it might have done a somewhat better job. Bigger isn't necessarily better, but it's not always worse, either.
This isn't a tax in the sense the Framers understood the term, Brian, and it isn't being imposed for a Constitutional purpose. The intent and effect of the proposed legislation isn't to raise money, but rather to punish individuals for not spending their money in a Congressionally mandated manner. Even many of those modern Constitutional "scholars" who hold that something like the Commerce Clause is infinitely capacious and confers upon the Congress virtually unbounded power to spend money on whatever it wants would have to concede that they've gone a bridge too far here in having government, rather than instituting a public health care system, financially coerce its citizens to participate in private enterprise.
ReplyDeleteIf the individual mandate is Constitutional, then Congress can tell you quite literally how to dispose of every penny you have; if Congress can do that, it's only a matter of time before they do. What you're saying here basically boils down to the proposition that Congress can spend money on anything it wants and can force you to spend money on anything it wants, with perhaps vanishingly few exceptions; what you're saying boils down to the proposition that a document which constituted an unprecedented experiment in limited government and individual liberty was really just a blank check, a grant of virtually unlimited dominion of the state over the individual. I'm sure there's some way it makes sense in your head, but from where I'm sitting it looks mind-numbingly stupid.
Don't ask, don;t tell:
ReplyDeleteThe government does have a very great "say" in the behavior of the military, but it ought to exercise that say with discretion and with respect for the dignity and respect of service members. In other words, even in the lives of the military, the government shouldn't be more controlling than it has to be. Colin Powell and other prominent veternas have said that "don't ask, don't tell" should be reevaluated; I humbly agree.
As long as a soldier can be discharged for saying that he or she is gay, it's hard to see how "The affirmation of your sexual orientation has nothing to do with being a soldier."
Just what we needed, 2 people named Brian to simplify matters! lol
ReplyDelete"As long as a soldier can be discharged for saying that he or she is gay, it's hard to see how "The affirmation of your sexual orientation has nothing to do with being a soldier."
ReplyDeleteHow is that hard to see? It follows exactly. We're obviously not seeing eachother's reasons. My reason is because if you're gay and saying, "I'm gay" has nothing to do with being a soldier than you have no reason saying it. Just like at my job as a teacher, I don't think it would be part of my job to say, "I'm gay" to my students. It's unnecessarily distracted. I wouldn't have a problem with a school having a "don't ask, don't tell" policy. I also don't think I should be telling my students how great of a night drinking I had and all the hot girls I saw or anything else that could lead to an unnecessary distraction. What good could come from me talking to my students about how I like woman? Similarly, what good would be caused by male soldiers talking about how they like men? It just doesn't make sense. In a position such as that, where men are supposed to fight for eachother and if need be, jump on grenades for eachother, why must anyone know that someone is gay?
And from a purely logistical viewpoint. Having Gay soldiers I believe would inevitably lead to soldiers having sex with eachother. I don't think that's a good idea. Now you might disagree about all these reasons. But they are certainly reasons and valid concerns and when it comes to the lives and deaths of the soldiers in battle, I don't see how you can blame them for being careful. Also, the government is employing them. It's not like they said hey, you, out in Newark, running your business, you have to have a don't ask don't tell policy. What a lot of this comes down to for me is whether the government has a legitimate right to do what it does.
ReplyDeleteI would do largely the same thing with gays in the military that we've done with women, and for some of the same reasons: allow them in generally but keep them out of combat units. A little sexual tension in support units isn't going to be the end of the world, but when soldiers are faced with a choice between taking that hill and risking their mission to save a girlfriend or boyfriend who's under fire, we have a serious problem. Relationship drama is also more of a serious issue in a combat unit where people are depending upon each other in a very different way.
ReplyDeleteThe first consideration of the government in its military lawmaking should be the effectiveness of its fighting forces. A close second and largely related consideration is providing for the safety and security of those who put their lives on the line for us. A distant and far less important consideration is the promotion of an egalitarian social agenda and a warm, fuzzy feeling of inclusiveness. The military exists to defend democracy, not to practice it.
"why should the federal government be able to decide for the entire country that the drinking age must be 21."
ReplyDeleteThis is a decision that I called "defensible"--not one that I feel very strongly about. In a referendum, in fact, I'd probably vote against it, but I'd want to be better informed.
For me, the question of whether this is properly a federal matter would depend a lot on whether a good case can be made that it affects federal roads, the regulation of interstate commerce, or other matters for which the government is Constitutionally responsible.
I would interpret these interests and functions matters fairly broadly, because the functions and interests are the several states are closely interlinked. Loose construction of the Constitution to authorize federal action in the common good goes all the way back to Hamilton, Washington and the First Bank of the United States. It's sometimes been abused, but it has often proved necessary for the public good. It's part of the job of the Supreme Court to make sure that "loose construction" doesn't mean "everything goes," and that the government is not acting without constitutional rationale or without regard for individual rights. Ultimately, it's up to the electorate to reject governments that exercise power arbitrarily.
You seem to think that the federal government is a foreign occupying force and that federal taxation is armed robbery. I'd remind you that the president and congress are constitutionally elected and that the Congress's power to tax is in the Constitution.
You also seem to think about these issues in an almost absolutist way: Congress can impose any mandate it wants or no mandate at all. I don't think that's ever been or could ever be the paradigm for Constitutional law. There is a lot of checking and balancing to do; it's a delicate dance.
Davy,
ReplyDeleteI think you may have missed my "reply to myself," before your first reply; this is where I answer your question about times when government has (to some extent) protected the people from government. I'll just move it down here.
By the way, I need to go prep tomorrow's classes, so if I don't respond to some of your comments tonight, it;s not that I;m ignoring them.
==============
Oops--forgot to respond to at least one of your comments, Davy.
When Is ay that I want to "restore" the role of government as the people's counterweight against government, I am, of course, like most nostalgic people, looking back to a past that is only partially real. But government has served this purpose better at some times than at others; in particular, the progressive era (labor rights, anti-trust legislation, etc.) and the New Deal were times at which the government acted as something of a tribune. (And I happily note that one of those periods was largely under Republican auspices; I'd be glad to see both parties take up these functions again.)
But I take your point that there is no perfect past to restore. We just need to keep working towards getting government to serve the people, knowing that the ideal of government truly "of the the people, by the people, for the people" may always remain a goal.
Well I would challenge the efficacy of many of those attempts to curb big business and to help the "working man." If anything it just intrenched both sides of the debate. Unions versus Corporations. And never the twain shall meet (happily that is)
ReplyDeleteDavy,
ReplyDeleteOK, I'll post at least one more response tonight, because i just saw your "don;t ask, don;t tell" response.
Under the don;t ask, don;t tell policy, service members aren't just prohibited from revealing their sexual identities in specific military context; they're prohibited from revealing them in any context that the government might find out about. We obviously disadree about whetehr that is necessary, but I really don't see how you can say that people are allowed to "affirm" their sexual identities as long as they keep their sexual identities secret. maybe we' have different understanding of what it means to "affirm" something.
Incidentally, Former Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili said a couple of years ago that "I now believe that if gay men and lesbians served openly in the United States military, they would not undermine the efficacy of the armed forces." A number of studies have also reached this conclusion. the argument that don't ask, don;t tell s necessary to "good order and discipline" is getting less and less credible.
Anyway, I brought this issue up to illustrate a point:
For me, limited government means primarily that government should honor individual rights and interfere with private lives as little as possible.
I never said they're allowed to affirm it. I'm saying that there's no reason to affirm it if you're a soldier because it's not relevant.
ReplyDeleteThey should interfere with private lives as little as possible except when it comes to almost anything else the government does like healthcare, drinking ages, etc. In otherwords a liberal policy that you're in favor of should be left alone, but not the other way around.
ReplyDeleteDavy says
ReplyDelete"They should interfere with private lives as little as possible except when it comes to almost anything else the government does like healthcare, drinking ages, etc. In otherwords a liberal policy that you're in favor of should be left alone, but not the other way around"
Well, no--and yes...I mean, clearly, the definition of "as little as possible" or "only when neceessary" is something that has to be hashed out democratically in the public arena. I have my opinions about those defnitions and about the meaning of the Consitution, as do you. We each get to vote and petition the government, and the Supreme Court ultimately decides what the Consitution means.
But you seem to think I want the government to have some kind of absolute power over healthcare decisions. No. Even in healthcare, the government should interfere as little as it can while protecting the people from corporate inteference and while ensuring that all citizens have access to health care.
The goal is not to control, but to serve. Sometimes, admittedly, the governmetn can only serve by exerting some control.
Davy said,
ReplyDelete"On the statistics claim. It's not my burden to come up with statistics just because you brought up biased ones. You brought up statistics. I say their faulty and I won't accept them. It's not now up to me to find better ones. That would be way way way to much work."
Sure, you don't have to come up wit statistics, and you don't have to prove that the U.N.'s statistics are not valid. You've given no reason for me or anyone else to believe that those statistics are flawed , however.
"And like I said before just because someone isn't willing to pay for something doesn't make it unaffordable."
I'm not sure why you think I'm conflating the two. There are many people who are not eligible for Medicaid but who cannot both pay healhcare premiums and pay other necessary bills. this really isn;t a controversial point. Massachussetts, for instance, acknowledges this point by granting hardship exceptions to its individual madate. they're not granting thie exception because people don;t want to pay premiums; they offering this waiver because people can;t afford to pay premiums.
Davy,
ReplyDeleteI think Paul Krugman gives a good general sense of how a single-payer system could reduce the cost of health care by reducing administrative costs:
"The great advantage of universal, government-provided health insurance is lower costs. Canada’s government-run insurance system has much less bureaucracy and much lower administrative costs than our largely private system. Medicare has much lower administrative costs than private insurance. The reason is that single-payer systems don’t devote large resources to screening out high-risk clients or charging them higher fees. The savings from a single-payer system would probably exceed $200 billion a year, far more than the cost of covering all of those now uninsured. http://pnhp.org/blog/2008/10/13/nobel-laureate-paul-krugman-on-single-payer/"
As a result, the increased taxation to support a single-payer system should be less than the eliminated premium costs for employers and individuals, thus resulting in a net savings.
My own Canadian friends strongly support what Krugman says about Canada's system, as incredible as I'm sure it sounds to some U.S. opponents of health care reform.
Brian and Davy,
ReplyDeleteWhile I'm quoting people who know a lot more than i do about healthcare (and they're not hard to find), let me include this excerpt on the constitutionality of the health insurance excise tax:
"Congress has the power to pass legislation that falls within any of its powers enumerated in the Constitution. There are two obvious sources of congressional power [to impose the mandate]. The first, described in the General Welfare Clause, is the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” The second, laid out in the Commerce Clause, is the power “to regulate commerce . . . among the several states.”
The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country.1 This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally.
Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment."
--Jack M. Balkin, J.D., Ph.D..
The Constitutionality of the Individual Mandate for Health Insurance
Posted by NEJM • January 13th, 2010
(http://healthcarereform.nejm.org/?p=2764)
Brian, I hope you won't find Balkin too "mind-numbingly stupid."
(editing and reposting my last from last night)
ReplyDeleteDavy, where did you ever get the idea that I wonder why people call me a socialist? Maybe it's because I once made a joke on the ACS blog about being called a communist and a fascist--and I am not, in fact, either of those (let alone both!)
I'm not crazy about labels and I don't call myself a socialist. But I can certainly understand why someone would call me one. There are socialist or social democratic elements in my thinking, just as there are such elements in American government today (e.g., Medicaid and Medicare). I think, and apparently the courts think, that these particular aspects of socialism (as I would call such programs, even if the courts haven't) can be justified constitutionally on the basis of the general welfare clause and other other enumerated powers. I don't think "socialist" should be a bad word. Ask European conservatives (like Maolsheachlann) if they would eliminate all aspects of social democracy from their government. I'm sure that you could find some who would, but many would not.
Similarly, most Americans--even conservatives--support the continuance of Medicaid, Medicare and Social Security. Do you oppose those programs? Do you find them unconstitutional? Do you think any attempt to build on them--such the Medicare expansion nixed by Lieberman--is necessarily unconstitutional?
Incidentally, do you oppose the states' authority to mandate auto insurance? Do you think that accepting this authority means that states can require citizens (or at least certain classes of citizens, like car owners) to buy anything at all--from "I Love New York" bimber stickers to Schawarzenegger "terminator" air fresheners--or can the legislature, courts and people distinguish between those mandates that are in the peoples' interest and those that are not? I realize that only certain powers are delegated by the states and the people to the federal government, but I'm dealing for the moment with the "slippery slope! they'll be able to mandate anything!" argument. As Balkin says, the test under the "general welfare" clause is whether Congress could have reasonably determined taht a tax serves the general welfare. Maybe it's just possible that Congress could determine that taxing the voluntarily uninsured serves the general welfare, while taxing those who refuse to pay copies of The Audacity of Hope, or those who buy Coke instead of Pepsi, is not.
Reasonable people can and do disagree about the means of providing everyone with decent healthcare. If we truly cannot craft a constitutional mandate that won't spell the end of freedom now and forever, then we'll have to find another way; a single-payer system is an alternative that comes to mind.
ReplyDeleteI can understand, though, that none of this seems necessary if you truly don't believe that there are many people who cannot afford healthcare. I understand that there are people around you who could afford health insurance but choose not to purchase it; but I ask you to look around a little further. The Kaiser Family Foundation has a fact sheet on who the uninsured are; check it out (http://www.kff.org/uninsured/upload/1420-11-2.pdf). I hope that everyone can share the premise that there are real, unmet human needs here, and that it is everyone's collective responsibility to meet these needs. Then, starting from that premise, we can argue about how to meet those needs--at the local, state of federal level, and through the private sector or the public sector.
Speaking of the private sector and the public sector: I think the cool thing about Hudge and Grudge is that it explodes a false dichotomy, as Chesterton was wont to do. It's true that big business and big government are not always opposed.
But it is true that they are not always together. Was anti-trust legislation good for the monopolies of the robber barons? Was the Glass-Steagle Act good for big bankers, and was its repeal good for the rest of us? Have big businesses welcomed the minimum wage, health and safety regulations, regulation of working hours--and have not all of these legislative moves helped the lot of workers? (You can argue, of course, that too high a minimum wage or too strenuous a set of regulations is bad for workers. But would we really want to eliminate these protections entirely?)
I refuse to accept that Hudge and Grudge are inevitably linked. To accept that, in my view, would be to give up even hoping to use government as an instrument to build a more just society. We have to try to sever the link between Hudge and Grudge--even if we'll be trying forever, with only incremental and intermittent progress. Abolishing corporate personhood and reversing the Supreme Court's very recent, very bad campaign finance decision would be a good start.
In a perfect, distributist utopia, there would be no need for big government; we could let a thousand flowers bloom. Short of that perfect world--and as a means of getting closer to it--we need a government that helps to protect the common people and provide them with educational, economic and social opportunities. Someday, when the government has helped to empower the people enough, there may be little need for big government. Until then, I think that government needs to be a very strong servant. And we're going to have to balance government's strength with its servitude to the people. I think this is what Obama was getting at when, in the Inaugural passage quoted above, he said we need to ask not whether government was too big or too small, but whether government was working. He didn't mean that we just need to ask that once, of government on a global scale; he was clear that we need to ask it of each program and each aspect of each program, and that we need to build on what works as well as scaling back or phasing out what doesn't work. It's messy; it's not ideal; that's life.
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ReplyDelete(I'll try and put that in the first line or two of my posts so it's clear which "Brian" I am)
Unfortunately, there are some mistakes which are so monumental and egregious as to require an advanced degree, some propositions so absurd that no one without a string of postnomials would imagine advancing them with a straight face. The gentleman from whose article you quoted proves that point quite nicely.
It requires a doctorate or two to consider that my sitting at home and not buying health insurance constitutes "commerce among the serveral states" which is subject to Congressional regulation. There is ample precedent to support the logical proposition that the Commerce Clause is not a grant of absolute legislative power; see for example the fairly recent Lopez and Morrison cases. Try to fit this legislation in with the parameters the Court sets forth in those cases without engaging in ugly mental contortions.
His idea of an infinitely capacious General Welfare clause is similarly absurd. If the Framers really meant that Congress could tax and spend on anything it considered to be encapsulated within the general welfare, why bother enumerating very specific ends towards which it was permitted to raise funds? In fact, if these two clauses really mean what you think they do, then most of the rest of the Constitution doesn't mean anything at all. Evidently we've had it wrong all these years; the American Revolution and the Constitutional Convention weren't about individual rights and the establishment of a framework wherein ordered liberty could exist among free people governed in a federalist system by a government with carefully bounded legislative functions; they were really out to establish a Nanny State which would care for him from cradle to grave and was free at will to tell him how to dispose of every dime he made.
It's also nothing like automobile insurance. For starters, there's absolutely no federal requirement to have insurance, as such a requirement would be patently Unconstitutional; the 10th Amendment reserves the states power to make law on matters like this, and automobile insurance mandates are state law. Secondly, at least those requirements hinge upon some sort of activity; I'm driving a car on state roads and they get to tell me, within reason, under what circumstances I'm allowed to do that. If I don't like it I can take public transit or a taxi or a bike or I can walk. I'm engaging in an economic activity, relying upon infrastructure set up by the state, and implicitly agreeing to abide by state rules in the process. In order to argue that the cases are similar, you'd need to ignore the distinction between state and federal government, ignore the fact that one case represents regulation of an activity (driving) where the other represents regulation of inactivity (sitting on my ass), ignore the fact that in one case I have easy alternatives which let me opt out where in the other my only alternative is to go to jail or stop breathing.....in short you'd need to ignore a multitude of cavernous differences and hold that they're really quite similar because they both contain the word "insurance".
Brian,
ReplyDeleteYou obviously know your stuff; I'm happy to share the name Brian with you, and glad you're visiting this blog.
I can't help but wonder if any of your own degrees are in hyperbole. I don't see that Balkin's arguments would lead to a "Nanny state" with unlimited power. Under his reading, Congress would still need to have a reasonable basis to conclude that a given tax is in the interest of the general welfare. And I don't see anyone saying that "general welfare" somehow trumps the Bill of Rights or the 14th Amendment and allows Congress to place an excise tax on attending church services, slap a 99% income tax on Republicans, or mandate reading Daily Kos.
I think that the commerce clause argument holds not that failure to get insurance is an act of interstate commerce, but that the proper, well-regulated functioning of our interstate commerce in the area of healthcare requires everyone to either pay an insurance premium or a tax.
You're right that Balkin is highly educated (or overeducated, if you like); he's a professor at Yale. But I don't think he would say, or feel any need to say, that the framers were out to establish a nanny state even if he wanted to establish a nanny state. Balkin is a textualist, not an originalist; he argues that "Originalists are right that the Constitution is binding law, but they confuse the constitutional text—which is binding—with original understanding and original intentions, which are not." He further argues that even so-called originalists, like Justice Scalia, overlook evidence of original intent when they need to do so in applying the constitution's text to modern circumstances. Balkin's article in slate is an interesting read; I'm sure you'd find it infuriating and/or absurd, but if you're in the mood for that sort of thing, see http://www.slate.com/id/2125226//.
If you want to read a self-described liberal originalist (http://www.slate.com/id/2126680/)defending the excise on the the voluntarily uninsured, see "Constitutional objections to Obamacare don't hold up," by Balkin's colleague, Akhil Reed Amar (http://articles.latimes.com/2010/jan/20/opinion/la-oe-amar20-2010jan20).
I acknowledge, of course, that there are huge differences between states mandating auto insurance coverage and the federal government mandating health insurance coverage. I thought I acknowledged these differences in my previous post, but I may have been unclear; sorry about that. But I brought auto insurance up only to make the point that states are able to require it of drivers without somehow falling down a slippery slope that would lead to all drivers being required to own a Ford Focus. I'm not sure why the federal courts couldn't also find some mandates reasonable and others not--even under the capacious general welfare clause. Massachusetts has a health insurance mandate in place; do you think they are doomed to an totalitarian state government?
If the legislation somehow still passes, the Supreme Court will, I'm sure, get a chance to decide on this. Given their decision last week on campaign finance, I wouldn't be surprised if they strike down the whole healthcare bill as an affront to the Constitutional rights of corporate persons such as Aetna and CIGNA. On the other hand, maybe I'll be surprised and they'll strike down the mandate and leave in place the requirement that insurance companies insure high risk clients. I can't say that this would upset me. If insurance companies find that their industry can't be profitable under those conditions, maybe we'll have an opportunity for greater reform.
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ReplyDeleteThanks for the kind words. I'm a friend of Dave's, and I'm glad he linked me to the thread. :)
The fact of the matter is that there was no uniform understanding as to what the "General Welfare Clause" meant among the Framers. Madison and many others considered that it represented a limitation upon rather than an expansion of legislative power; in order for laws to be constitutional, they would need both to serve some specific constitutionally permitted purpose and also to serve the general welfare of the United States. So in the case of something like the insurance mandate, Congress would need to rationally conclude both that it represented an attempt to regulate interstate commerce and that it served the general welfare of the United States.
Hamilton and his followers took a different view, and it seems that Professor Balkin is in that camp. This school of thought holds that Congress can make pretty much any law it rationally thinks serves the general welfare of the United States without violating specific constitutional rights or running foul of specific constitutional prohibitions against legislative action. And while this view did have its share of supporters at the inception of our republic, it was far less the prevalent view, and in my opinion was the far less logical when considered in the totality of the document it proposed to interpret. Why bother enumerating very specific powers if all you really mean is anything in the general welfare or common defense? Wouldn't the power to raise a military and make rules for it or to regulate commerce or to tax or just about anything else be implied in that? Again, if you look up Lopez and Morrison and try to square them with this, you'll wind up more than a bit confused. Surely we can all agree that preventing violence against women and guns in schools serves the general welfare. Why did all of those very smart government lawyers try to justify it under the Commerce Clause? Or look at Ashcroft/Gonzales v. Raich. If the General Welfare Clause is really that expansive, why does this too need to be shoehorned in under Commerce? I could give fifty more similar cases, but I think you catch my drift.
His argument against originalism, I'm sure it won't suprise you, strikes me as a bit obtuse and more than a bit scary. It's also very convenient for people in the legal profession, because it gives to the robed lawyers we call judges tremendous legislative power. It effectively gives to five unelected lawyers the same power that was reserved to the people in an extraordinarily difficult and democratic amendment process. If the rule of law means anything at all, the meaning of the law can't change on the whim of a judge who decides that society has evolved to a place where the previous meaning no longer serves us. That sort of determination, in a democratic society, is made through the legislative and not the judicial process.
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ReplyDeleteAs for being doomed to a Nanny State, I'm resigned to the fact that we are. The fact of the matter is that my side of this argument has lost the war on the ground, and yours has won. As a society we don't know or think much about our Constitution or about the judiciary, and so tend to be quite willing to subscribe to the notion that our most important founding document is a set of arcane legalese which means whatever the men in robes say it means and that the government which it constituted can do pretty much whatever it pleases.
Another sad fact is that as it has expanded beyond its constitutional role into things like Social Security and Medicare and Medicaid, it has made rolling back that sort of "progress" an impossibility by removing the existing support structures upon which societies had depended before these programs came around. Government has replaced the extended family, the church, and the community as the primary source of support for people in their old age. It certainly would be a thorny problem to remove those programs now that families and communities are overwhelmingly weaker and more distant than they used to be. And that's one of the most fundamental problems with the expansion of government: once it expands it doesn't tend to contract.
Ours has been growing ever bigger since the New Deal. Every time we elect a liberal, he makes it bigger yet. Every time we elect a conservative, he either makes it bigger or tries to keep it where it is, or to cut the rate of increase in spending. During the ratification debate for the amendment that legalized the income tax, it was proposed that the amendment include a 10% cap. This proposal was shot down because it was thought that Congress would view such a cap as an invitation to take 10%, and no one at the time imagined that the federal government should ever deprive its people of that much of their income. I wonder how those people would feel today.
Mr. Justice Brian,
ReplyDeleteI'll be honest with you--I'm not 100% comfortable with a very broad reading of "general welfare", and I would prefer to amend the Constitution to specify and delimit a reasonable (robust but finite) role for the federal government in the Twenty-First Century.
Today's circumstances are different--Washington is less distant, if only in terms of communications and technology, and we have more of a shared national history and identity, even though we are so divided in certain respects. I think these changes mean that it may be time to deliberately reevaluate how to implement the principles of federalism in the here and now.
Short of an amendment or amendments, we try to make use of such ambiguities as we can find in the text to authorize government activities that we democratically determine to be desirable. It's not comfortable or elegant, but we've been doing it since the beginning. I imagine (though I don't know for sure) that Washington and Hamilton might have been a little uncomfortable with stretching Congress's defense powers to justify the national bank. I feel sure that Jefferson must have been uncomfortable with, or in deep denial about, the stretch of federal authority that allowed the Louisiana Purchase. But they were more than uncomfortable with the prospective results of a strict interpretation; they thought those results would be disastrous to the union. So they read the Constitution broadly--which is not the same as ignoring the Constitution. And it's not the same as making decisions on a whim; it is possible to be neither a strict constructionist nor an originalist and still think that some interpretations are irrational; and it is possible to be neither a strict constructionist nor an originalist and still respect stare decisis. (It's the conservatives on this court who have been making activist decisions without regard to precedent--often based on tendentious readings of the text and little evidence of their supposed reverence for original intent. See Bush v. Gore and last week's campaign finance decision. Also, I actually also think that conservatives are more likely to look at the Constitution as arcane, in a certain sense--elevated high above everyday concerns, detached from living persons, inaccessible in its sacredness.)
I agree with those who think that the ambiguities in the Constitution help to make an enduringly usable framework. A framework doesn't only limit; it also supports and enables. The Constitution has been able to support and enable innovation and adaptation because the framers were not overly prescriptive. I'm sure each of them would have liked to be more prescriptive about some aspects of government, but the clash of different perspectives left a document that bears traces of various intents (such as the different understandings of the general welfare clause) and can therefore be defensibly interpreted in various ways. At times, the interpretive stretching gets too dangerous, opening up too many unintended consequences--and those are among the times when amendments may be necessary.
(response to Brian, continued)
ReplyDeleteI think that your 16th Amendment example illustrates the value of ambiguity. Supporters of the amendment may have assumed that certain limits would be observed, but, as you say, they didn't put those limitations in the text. Presumably the what counts as law is what they wrote, not what other sources suggest that they meant to write or what they would have written if they could have guessed how future generations would have applied their law. I'm sure they would be surprised at today's tax rates, but I'm sure they would also be surprised at many of the changes that have occurred since then; it was either wise or serendipitous that they didn't tie our hands based on the costs and needs of their day.
On the nanny state--cheer up a little! My "side" was doing great until 1980, but it seems to me that you could be encouraged by reductions in top income tax rates, scaling back of welfare, and deregulation that has occurred since then. Of course, i think many instances of those changes have been disastrous (the repeal of Glass-Steagle, for instance). And your "side" has managed to keep our social programs much less extravagant/wasteful/responsible/humane (let us each pick our adjectives) than those of other industrialized countries. Nice job on that. :)
(By the way, your first name, together with your interests and style and a possible New Jersey connection through Dave, reminded me of someone my wife knew in college; you didn't, by a wildly unlikely chance, go to Bethany in West Virginia?)
Brian,
ReplyDeleteOne last thought, because you raised a good question that I forgot to try to answer:
"Why bother enumerating very specific powers if all you really mean is anything in the general welfare or common defense?"
If the Constitution were single-authored, I might answer by saying, "You'd do this to provide wiggle room. Concerned that the Congress might eventually need to tax and spend for a cause you could not yet anticipate, you'd leave posterity a window to argue that this cause was necessary for the general welfare or common defense. You'd still enumerate certain powers that you knew you were necessary, in order to make sure that there would be no debate about those; isn't that, roughly speaking, why the Bill of Rights enumerates certain rights while also affirming enumerated rights?"
After all, if the drafters really meant that every Congressional tax or expenditure should both serve the general welfare and exercise an enumerated purpose, couldn't all those learned gentlemen have found a way to say so more clearly?
But the Constitution is not a single-authored document that reflects a single, fully unified intent, and I think you've hit on the real answer to your question: the Constitutional Convention did not have full agreement on how broad the powers of Congress should be, so it adopted language that was at least slightly open to either interpretation. This is what happens when a committee can't reach full consensus: it adopts vague language. In my view, part of the genius of constitutional law is that it has turned vagueness into a great advantage, providing flexibility to cope with unexpected circumstances without abandoning the basic structure.
So psyched that you started a blog! Way to go--I'll look forward to your posts.
ReplyDeleteHere's something to think about--how much does this O'Keefe story resemble The Man Who Was Thursday?? Discuss. LOL.