Meager Thoughts On The Constitutionality of Health Reform

In which we use this blog as a notepad to ourselves (now, with added Wikipedia!).
Lately, the web has been all atwitter with questions about the constitutionality of health reform. And why not? Surely the Founders of this great country did not intend for the government to go mucking about with health care delivery. Dammit, they intended America to look much more like this. Or this. Or this.

But all of that aside, it's not entirely clear there was ever a Constitutional problem with health reform until it's opponents woke up one day and declared, "I'd sure like to see some Constitutional problems with health reform." And lo, they did, because the Constitution is a bit unclear on certain points and barely anyone ever bothers to check, and when you look at it facts are actually kinda fungible and confirmation bias is a wonderful thing. And presto! A constitutional problem with health reform.

We blame this on the entirely unclear tenth amendment to the Constitution of the United States¹. Catchy? Of course. Clear as crystal? Hell yes. Point proven? Do not make us laugh.

There are two problems with this tenth-amendment-specifically-mud-wrestles-health-reform-into-submission theory. First, it's pretty clear that the Tenth Amendment was written in much the same spirit as a husband promises to mow the lawn next weekend. It's not meant to do anything. It's just there to reassure people.

Doubt us? You poor fool. The Supreme Court has largely held that the Tenth Amendment is a truism - an amendment that restates powers already granted in the Constitution. In fact, only twice over twenty years or so have laws fallen afoul of Amendment X, in both cases for fairly esoteric reasons involving states enforcing federal mandates.

And that's the problem with the Tenth Amendment - the powers already granted to the federal government are really, really large. They include the powers to regulate interstate commerce and the sweeping clause. They involve powers vast enough to create taxation, treaties, prisons, the FBI, the CIA, the NSA, wars, welfare, the Pentagon, the Army, Navy, and Air Force, Medicare, Medicaid, Social Security, national debt, housing subsidies, farm subsidies, and the Federal Reserve. Yet you think the powers-that-be are going to balk at an incremental, budget reducing reform that affects a measly 4% of U.S. health care spending?

It's pretty fucking doubtful. Social Security and Medicare acquire a hell of a lot more money from your paycheck and the federal government doesn't generally ask for permission.

But then, to paraphrase Brad DeLong, we do have four certifiably crazy judges on the Supreme Court. You never can tell with these things.

¹"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In Which We Ask A Few Questions

We're the ones in the ring. The ones who floored your pal Heaton . . . and last time I checked, he was still on the canvas.
- Ian Rankin, The Complaints
It’s desperate times here at the SMB. Over the past week, we’ve searched for something – anything – that could be labeled a coherent conservative argument against the healthcare bill. It has not gone well. Instead of vigorous, manly debate, we’ve heard nothing but an empty desolate silence, broken by the faint, fading whisper of “you socialist . . .”

It didn’t used to be like this. Once upon a time, the Strawman Blogger delighted in crossing intellectual sabers with his witty conservative opponents. But those halcyon days are long gone. It appears the crème of intellectual conservatism has died, been excommunicated, or fired in disgrace. And some have just gone plain fucking crazy.

So the Strawman Blogger needs your help. We’re looking for smart, conservative arguments to healthcare reform, and we want you post them below.

But, of course, we have some ground rules.

The Ground Rules

Here’s the deal. It would never do to have you scampering about this blog, shouting “filthy liberal!” until you go hoarse. You can criticize the bill, but with one special caveat: You have to criticize something actually in the bill.

Now, we have a sneaking suspicion that you may not actually be terribly familiar with the innumerable nuances of this legislation. So to make things easy for you, we’ve prepared a list of questions for you to ponder.

We can’t cover everything, but we’ve tried to capture the essence of the new law. So go ahead, my conservative friends! Select your most hated amendment, the foulest part of this legislation, and amaze us with your flawless logic. Post your answers in the comments below. This is your time to shine.

We won’t be holding our breath.

The Questions

1. A Republican Bill – This bill is nearly identical to RomneyCare, the popular conservative reform passed by Republican Governor Mitt Romney in Massachusetts. It is almost exactly like the conservative reforms suggested by Bob Dole. The basic plan was approvingly suggested by the ultra-conservative Heritage Foundation early in the last decade. It is further to the right than the healthcare deal suggested by Richard Nixon. How can a bill be considered a deeply Republican reform in 1974, 1992, 2002, and 2006, but is a socialist takeover in 2010?

2. 4% – A common Republican argument against healthcare reform is limiting the size of government. This bill will amount to around 4% of total healthcare spending. The government will not employ a single doctor. It will not write a single insurance plan on the exchanges. 96% of healthcare spending will continue to be administered by the existing market. If you have health insurance from your current employer, nothing changes. In what way is this a government takeover, and what is a credible Republican alternative?

3. The Exchanges – This bill creates a system of healthcare exchanges. They function as a simple marketplace, where people who are uninsured can purchase a policy from a private insurer. People save money by purchasing insurance as a group, much like we do through employers. Since the exchanges match private insurers with private citizens, how can this be considered an assault on the private market?

4. Public Ratings – This bill allows you to rate your insurance provider based on their performance, and that rating can be seen by the public. When you shop for a new insurer on the exchange, you’ll be able to research how well they’ve served people like you – rather like the product ratings on Amazon.com. How would the market benefit from preventing individuals from speaking their minds about the behavior of their insurer?

5. Pre-existing conditions – Starting today, children can no longer be denied insurance based on pre-existing conditions - and they can no longer cancel your coverage if you get too sick. In 2014, that protection will be extended to adults. People will be able to stay on their parents plan until the age of 26. Would individuals benefit if insurers retained the right to deny coverage to children and adults based on conditions like cancer, AIDS, and hereditable disease?

6. Cost controls – The health care bill reduces the deficit by $1.3 trillion dollars over 20 years – and much more beyond that. It experiments with cost controls like bundling payments to hospitals, so that they’re paid by how quickly you get well, not how many treatments they perform. It researches comparative effectiveness, to see what treatments work better. It creates an independent board to evaluate waste in Medicare. How can a bill that reduces the deficit, cuts costs, and involves less than 4% of total healthcare spending be considered budget busting?

7. Insurance spending – Starting immediately, insurers will have to spend at least 80 cents out of every dollar on medical care. If an insurer spends less than that on care, they’ll have to rebate the difference to its customers. Should less insurance dollars be directed to actual care?

8. Medicare Expansion – This bill leaves our current system of private insurers alone. If you’re currently insured by your employer, nothing changes. If you’re insured as an individual, you’ll still be able to choose your policy – you’ll just be given more information and cheaper premiums. If we went with a liberal option, we would extend the popular Medicare program to all Americans, either directly, or by allowing people under the age of 65 to buy-in. This bill prevents that. How can a bill be credibly considered as advocating big government, when the most likely alternative involves enrolling every single American in a massive government program?

9. Premiums – According to the CBO, premiums on the employer-provided market will become slightly less expensive. Premiums on the individual market, on the other hand, will go down by 7-10%. Why is it bad if existing policies from private insurers become more affordable?

10. Subsidies – Currently, we give the poor insurance through Medicaid. We give the uninsured free emergency care through hospitals, at great expense to responsible adults with insurance coverage. But we had no mechanism to help out middle-class families struggling with insurance premiums that grow at rates in excess of 7% a year. This bill assists middle-class families in affording insurance by providing scalable subsidies to families earning up to $88,000 a year, helping them purchase private insurance for themselves and their children. Why do the poor deserve free care, and the rich the capacity to afford it, but the middle-class has to shoulder the burden on their own?

That should give you something to chew over. We could go on, but ten is a nice round number - and we're getting just a little bit bored. Comments below - do your best.

The Morning After

And that’s it, then. With much fanfare and an acceptable amount of self-congratulation, on Sunday night Congress passed health care reform.

We are relieved.

So what now, you ask? Where, if you’ll pardon the expression, is the beef? What does our future look like in this fresher, newer, health-reformier world?

Beats the hell out of us. We’re a humble blogger, for God’s sake, and while the light of our brilliance may have swept away the cobwebs of your ignorance from time to time, our talents don’t extend to fortune telling. But we’ll promise you this: It’s gonna be a bit of an anticlimax.

See, that’s the trouble with telling the future. Throughout this process, there have been so many lies, so much dishonesty and deliberate misrepresentation, such fear-mongering and obfuscation, that it’s impossible to figure out what the opponents of the bill expect to happen. An immediate tripling of the federal budget? Babies thrown to lions? Stalin’s jackbooted thugs to march through the hallowed halls of Premera Blue-Cross while the ghost of Lenin angrily unplugs grandfather’s ventilator?

Probably not. In spite of the agreeable furor on the Republican right, the Constitution remains relatively intact. The sun will rise tomorrow. And, for the 90% of Americans enrolled on the employer-insurance market, absolutely nothing will change about your health insurance.

Absolutely. Nothing.

. . .

That thought may take some getting used to.

If you’re a part of the majority, the bill isn’t designed to affect you. That’s not how it rolls. It’s been written to alleviate the deep and real suffering of uninsured Americans, slap a bit of sense into our dysfunctional individual market and, maybe, introduce some small steps to taking control of our rising healthcare costs. We could have done more, but quite frankly you lost your shit when we wanted to introduce a fucking research panel, so forgive us if we aren’t tripping over ourselves to fix the rest of your innumerable problems.

Still, as you know, this blog likes to consider itself an armchair expert on health care, the economy, and politics in general. Silence just won’t do. So against our better judgment, we’ll take a quick look into the future and see what changes are wrought from this most unexpected bill.

On Healthcare

First, let’s make a bold claim: This bill is not going to be repealed.

Over the next few weeks, you’ll hear noises on the Republican right that they’ll stake their campaigns on the repeal of this bill. That is not going to happen. The very second a Republican majority advances the repeal of healthcare the Democrats will filibuster the hell out of it, and the Republicans are not going to get near enough seats to ram it through. That would mean weeks of painful political haggling followed by eventual defeat, and the Republicans are not idiots. Even weasels have a certain base cunning.

Secondly, it’s a lot easier to scare people with the unknown. In six months, insurers will no longer be able to deny coverage for pre-existing conditions. 80 cents of every dollar they earn will have to pay for care, or be rebated to individuals. Children up to the age of 26 will be able to ride on their parent’s policy.

After the midterms, in 2014, individuals without insurance will start receiving subsidies to help them purchase it. They’ll have access to insurance exchanges, where private policies can be purchased, and where insurers can’t jack their rates up without giving reasonable cause. And they’ll be able to read community ratings, from people like them, talking about how good or bad an insurer is at doing their job.

People are going to like these things. They’ll become popular. In other words, “Vote GOP: Taking Insurance Away From Children” is not going to gain traction as a campaign slogan.

But for most of us, nothing changes. And that is a pretty big problem. Our system of employer-sponsored insurance is still expensive, dysfunctional, and getting worse. This bill doesn’t fix that. There will be even bigger changes to health care in the years to come.

This bill, though, gives us a structure. First, by requiring people to purchase health insurance, it makes us stakeholders in a system that desperately needs reform. Secondly, employer-sponsored health insurance is going to continue to fail – and as it fails, we’ll have the chance to bring these people into the exchanges. The Strawman Blogger loves a backup plan.

On The Budget

Our budget problem is a health care problem. You could cut every bit of waste, stop every dollar in discretionary spending, fix Social Security and the Pentagon, dismantle welfare, gut the federal prison system, and annihilate the FBI, and healthcare would still bankrupt America. It’s just a matter of timing.

Healthcare continues to grow at rates in excess of 7% a year. Our economy will be lucky to manage half of that. Fixing the budget means controlling rate of growth in healthcare spending.

The healthcare bill starts the messy process of cost-control. Ezra Klein has the dirt here.

It won’t, however, be enough. It’s easy to bend the cost curve in health care. Trouble is, it means reducing payments to doctors or cutting back on unnecessary care.¹Our budget problem is still largely unsolved.²

On Politics

Conventional wisdom says that health care has canonized the culture of “No”. In other words, it’s better for a minority party to block legislation than compromise on it, better to defeat a bill than make it better, better to misinform than to mediate. In other words, make the other guy look bad, and you’ll probably be a winner when the next election rolls around.

It’s a pretty good strategy, politically speaking. Let’s be perfectly clear - Republicans are going to win in the midterm election, and they’re likely to win big. That’s just how these things work.

But it’s not much of a strategy for governing a country. The Republicans will ride back into power, and it will be the Democrats turn to filibuster every bill in sight. And so on and so forth, and the only legislation we’ll be able to pass will go through reconciliation.

So if you oppose the bill, think about this: Over 130 amendments were accepted by Republicans in committee. The public option was dropped and a Medicare buy-in was never truly considered. This is a conservative bill, and not a single conservative voted for it.

Next time around, how willing do you think the Democrats are going to be to compromise? How many days are they going to waste in committee or compromise when they know the minority party is just waiting to stab them in the back?

Fighting legislation in this way makes it more likely you’ll see legislation you hate. The next time a Democratic congress considers health care, they won’t bargain with you. They won’t invite you to sit on a committee or offer an amendment. They’ll craft a liberal bill to suit the rules of reconciliation, and they’ll ram it through. Why not? They know that nothing they do will buy your vote, so they might as well use theirs.

Or maybe not. They’re still Democrats, after all, and they aren’t bright species. But it’s still a crap way to govern a country.

¹In case you have not been paying attention: Neither of these are likely to be popular.
²Tort reform, you say? Don’t make us laugh. $11 billion a year. Come up with something new – and try not to embarrass yourself this time.

Bah!

Today, while driving to work, the Strawman Blogger was able to engage in a time-honoured past-time: family gossip.

Truly, no one can gossip like the SMB family can gossip. Family events are nefarious, shifting affairs, a roiling morass of juicy rumours, traded in an every-shifting series of petty allegiences. The cousins gather to gossip about the aunts, before breaking apart to trade trivialities about the grandparents, only to divide into splinter cells to monger about the nephews. What they say about us, we can only guess.

Wine helps.

Today the subject centered around an ailing British family member. "Good luck to him," someone spat. "He has to survive that awful health service."

We couldn't agree more! Good luck to the poor man! The poor, down-trodden wretch. Not only is he forced to recieve health care at no charge whatsoever, but he suffers the horror, the indignity, of having his care provided by the NHS.

Bloody socialists.

What sane person, after all, would elect to receive free health care from an agency with a 92% approval rating among seniors that assures health outcomes that rank a meager 19 places above America!

Truly, with a table like this, it's amazing anyone bothers to be European at all:

WHO Health Rankings (By Outcomes)

1 France
2 Italy
3 San Marino
4 Andorra
5 Malta
6 Singapore
7 Spain
8 Oman
9 Austria
10 Japan
11 Norway
12 Portugal
13 Monaco
14 Greece
15 Iceland
16 Luxembourg
17 Netherlands
18 United Kingdom
19 Ireland
20 Switzerland
21 Belgium
22 Colombia
23 Sweden
24 Cyprus
25 Germany
26 Saudi Arabia
27 United Arab Emirates
28 Israel
29 Morocco
30 Canada
31 Finland
32 Australia
33 Chile
34 Denmark
35 Dominica
36 Costa Rica
37 United States of America

Alternatives

The Setting

Paul Ryan is my hero.

For months, the health care debate has been a pathetic little pantomime of back-and-forth bickering. The Democrats advance a plan; the Republicans rebuke it. The Democrats make changes; the Republicans are unmoved. All of which has prompted the Democratic majority to stamp their tiny feet in frustration. “Show us the money!” they cry, pathetically, “Tell us how you would fix healthcare!”

Rep. Paul Ryan, finally, did just that. He wrote a reasoned, sensible plan that sketches an entirely different plan for healthcare from the Democrats. Then he took it a step further, and had it scored by the Congressional Budget Office. The CBO, staring at the bill from beneath the grey bushy eyebrows of wisdom, declared its opinion: Paul Ryan’s proposal would save money.

Shedloads of it.

“Begorrah!” you cry in shock. “What a turn of events? Could it be that the Strawman Blogger, an inveterate, unapologetic liberal, a nasty little mean intellect who delights in tweaking the nose of all things conservative, has finally changed his stripes? Has he come to support a conservative health care plan?”

You poor idiot. Of course not. Paul Ryan has suggested a shitty plan and, much worse, a shitty plan that is political suicide. Paul Ryan’s conservative brethren are scrambling away from his leprous proposal so quickly they are in danger of smashing through the walls of the Senate, leaving only comical congress person shaped holes behind, Looney Toons-style.

But that’s not Paul Ryan’s fault. The only thing Paul Ryan has done, the thing that is causing all sorts of conservative noses to crinkle, is clearly, intelligently, and lucidly write down a Republican health care alternative.

And just what is this alternative, you ask?

The Alternative

The alternative is pretty simple. Paul Ryan gets rid of Medicare. Instead of Medicare enrollment, seniors are given a voucher to purchase insurance on the existing private market. To save money, the voucher grows much, much more slowly than health care costs.

That’s the power of the proposal. Don’t want seniors spending money on medical care? Just don’t give them any. People will purchase fewer treatments because they won’t be able to afford them.

This is so awesome it has our gonads tingling. Balance the budget on the back of grandma. No wonder the CBO loves it.

Seniors, maybe less so.

The Smackdown

Because if there’s one thing guaranteed to lose you the support of the most powerful voting block in America, it’s asking them to balance the budget by skimping on the chemo. So, much like the Titanic should have done when sailing toward the world’s largest ice cube, Republicans are backing the hell away.

It’s not that seniors shouldn’t sacrifice, they say. But first we might want to try offering consumer protections. Make premiums more affordable. Bring competition to the individual market. All good ideas. Someone should really write a bill like that.

And that’s the lesson of Paul Ryan’s proposal. Sure, you can balance the budget without changing a single atom of our current system. You can leave insurance companies alone, you can ignore our staggering medical unit costs, and you can continue shoveling so much money to doctors that they have to carry their paychecks home in a wheelbarrow.

But that option has costs. It means that we offer less care and we annihilate the single most popular public program in living memory.

Still, Paul Ryan is a hero. He told people the truth. It may be an unpopular truth but, warts and all, we love it. We could use a lot more politicians like him.

Housekeeping

Regular visitors to this blog will notice it’s lost a bit of weight. Most notably, we’ve removed a few old posts from the archive.

Rest assured, you aren’t missing anything. We’re new to this blogging lark, and recently we’ve realized that a number of our musings did not live up our exacting personal standards.

Some were rambling, others were promising but incomplete. Some, we whisper in horror, were not even very funny. And that is not something the SMB is willing to tolerate.

So enjoy! What is left is the crème of our outstanding intellect. In the future, we will try to be more discriminating in what we publish. As should you.

Good day.