Monday, March 26, 2012

Litigation or Legislation

The lawsuit joined by twenty-six states under Florida’s leadership reminds me that workable democracy really does require a kind of minimal consensus in the nation. When such consensus exists, democracy is workable. When it does not, a spectrum of dysfunction appears. It ranges from stagnation at one end to civil war on the other. We are currently living in such a dysfunctional era—and this lawsuit makes it easy to see it. Here is a map of the states that oppose the Patient Protection and Affordable Care Act, aka Obamacare:

The states shown in pink are all headed by Republican Governors. The two states shown in purple are governed by Democratic Party administrations, but in each case the attorney general is a Republican; each has joined the suit, but each under protest; the governors and legislators in both cases assert that the AG is  not speaking for the state in joining.

If diplomacy is “war by other means,” so is litigation when it manifests in patterns such as this. This lawsuit is a symptom of another and more grievous condition—the loss of a national consensus. At its heart is the claim that it is unconstitutional to require people to spend money on health care. But of course in every state on this list, laws require individuals to spend money on auto insurance. Unable to see a meaningful functional difference between the two cases myself, I must conclude that this effort is at bottom political and has nothing to do with health care.

It’s strange to live in a country that is in process of exploding into fragments. The timescale of this explosion is very slow, but it is real enough. As John Edwards said a few years back, there are two Americas. They are hopelessly woven and mingled—and trying to separate. If a successful legislative initiative, such as health care, is not allowed to stand—if it is immediately undermined by litigation—and if such moves are indeed applied to every legislative action by the opposing party, and always along party lines, one is already living in the state of nature, not in a republic governed by laws.


  1. Why is healthcare at all like car insurance?

    If I am 12, I don't need car insurance, I cannot operate a car, legally.

    If I want walk, ride a bike, take a taxi, or use public transportation I don't need car insurance.

    If I lose my license and cannot drive legally.

    If I am 90, and cannot drive, I don't need a car insurance.

    In essence, I have a choice: if don't want/need a car, I don't have to buy insurance.

    How do I opt out of wanting/needing government mandated Health Insurance?

    As for litigation... well, how did you feel about the lawsuits in California to strike down laws passed by referendum as unconstitutional?

    How about Arizona and the immigration law?

    How about Florida in the Gore/Bush election?

    How about Coleman in Minnesota?

    Legal proceedings are used when the laws are not followed. The courts then decide if a law is legitimate or not.

    1. All well and good. Now, russell, suppose you wanted to use mandated car insurance as an analog? How would you argue that? I would bet that you'd find it relatively easy!

    2. (Sorry, this is long. I hope it formats well)

      There is no analogy to the Affordable Healthcare Act. There is no other product that the US Government requires I purchase, and enter a contract without my consent (Think about that one, contracts without mutual consent by force of law) simply because I exist.

      If I do draw the analogy, where does the analogy stop?

      As Justice Roberts stated today in arguments:

      "If the government can do this, what else can it not do?”

      And Kennedy: " requires the individual to do an affirmative act... that changes the relationship of the Federal Government to the individual" Full quote at the end of the post to see what was in the ellipses.

      Death insurance? We all surely die, therefore we all enter the "death market" at some point. If I have not planned for my death financially, the burden for my burial/cremation could shift to the public sector, just like Healthcare.

      Therefore, I must purchase a Death insurance.

      Also, everyone must at some time rely on Emergency Services. Therefore, we are now requiring you to own a mobile phone service in order to reach 911, either for yourself or your fellow citizen.

      Now, if the Government wanted to do this by taxes, like Social Security and Medicare, all well and good. They have the power to tax.

      Instead, they used a mandate approach because they wanted to be able to say that they were not raising taxes. A political reason. Also a procedural one, they would not have been able to use Reconciliation to bypass the filibuster rule. (A more detailed, and very political issue. Let us hope the Republicans, should they gain the Senate, manage to stuff that particular genie back in the bottle.)

      Now they are forced to defend that choice as the mandate is not a granted power, like taxation, but a forcing a private citizen into contract with another private entity, a healthcare company.

      Also, one last economic observation: In arguments today it was stated that 32m are not covered by Healthcare, and Justice Ginsberg stated that the cost to cover those people was $1000 per person, essentially hidden in insurance rates. AG Verrelli (representing the federal government) confirmed this number in arguments.

      That means the market covers the uninsured at the cost of $32billion per year, or $320Billion over 10 years, the way AHA is calculated.
      CBO expected cost: 1.9 Trillion.
      Seems the government is less efficient to the tune of about $1.58 Trillion than the market.

      Kennedy full quote:
      JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.