Every time the question of Obamacare’s constitutionality comes up, we
hear a lot of noise about how conservatives intend to ”strip” health
care from millions of Americans, a lot about how Republicans are
committing political suicide, and a lot of historical revisionism. Take
these comments from David Weigel of the Washington Post, which
summarize a number of Democrat talking points neatly.
“You can dream up some lawsuit against Medicare itself, sure, but every
legal attack on the ACA has focused on the parts designed to make it a market-friendly compromise,” he tweeted. “This is why a lot of Dems
(and Rs) think that if the hail mary Texas lawsuit succeeds — if the
ACA is torn up by judges on a technicality — the ‘just fix it’ era is
over. Democrats will have learned that compromise doesn’t work and run
For one thing, in the end, Democrats didn’t “compromise” on Obamacare.
The passing of Obamacare frayed our contemporary political order in
ways from which we have yet to recover. For the first time in history,
a major political party pushed through a national reform of the economy
without any buy-in from half the nation. And since its passage,
Democrats have demanded that Republicans help “fix it.”
Put it this way: If George W. Bush and the Republicans had used every procedural tool to unilaterally jam through partisan legislation that “privatized” the Social Security system, there would be zero
expectation that Democrats should help Republicans fix it.
And no Republican could vote for Obamacare, because there’s wasn’t a
single genuine conservative proposal that made it palatable (even if
Democrats insist that an idea hatched in the Heritage Foundation in the
late 1980s is consecrated GOP policy.) Not even moderate senators from
Maine, not John McCain, not one Republican, would go for it. And these
were politicians who would often cross party lines.
They couldn’t do it because the imaginary liberal concessions consisted
of little more than worthless bipartisan hearings, roundtables, and platidunious letters that the media dutifully framed as Obama’s
willingness to deal.
In his big let’s-get-this-done speech in September 2009, Obama reached
out to Republicans by promising to maybe shelve the “public option” in
state marketplaces (already opposed by a number of now-extinct Blue Dog
Dems) and maybe include a small-scale trial program for medical
malpractice lawsuit restriction (which liberals had already basically
put the kibosh on). The supposed Obamacare compromise, conveniently
enough, was Obamacare’s very existence. It was this or single payer.
Even back then, the left’s internal health-care debate rested atop the
notion that American voters had not yet evolved to where they could
accept the superior morality of socialized medicine. Even these days,
folks like Paul Krugman support single payer while also conceding that
it “just isn’t a political possibility.” Obama, who was a single-payer
advocate when he ran for the presidency, essentially acknowledged the
strategy when he tacitly endorsed a plan that would rid the country of
his signature achievement.
In any event, in the real world, the only negotiations that mattered
were between liberals who were worried about capturing votes needed to
pass Obamacare—and any bill that placed health-care spending under
government management was the kind of incrementalism Democrats could support—and moderate members who were worried that their careers would
be destroyed if they backed anything approximating socialized health
No one was passing a single payer plan in 2010. The only legislative
debate was between two wings of the same party. The idea that Democrats
have spent any time searching for common ground on health care policy
is absurd. If they wanted to fix it, they would try and build consensus
and start from scratch.
Secondly, there is no “market-friendly” aspect of Obamacare. I can’t
really conceive of anything less “market friendly” than forcing people
to buy things.
But if I were compelled to come up with some ideas, I’d probably start
with a plan that mandates exactly what rent-seeking corporations would
sell my captured “consumers.” Obamacare doesn’t only force Americans to
buy a product, it tells businesses what that product must look like.
And those government-approved plans are larded with expensive coverage
that social engineers, not consumers, have determined Americans need.
That is to say, every Republican lawsuit against Obamacare would have
made health-insurance more market-friendly. Although one supposes
people who believe that contrived price-fixed government-subsidized
state “exchanges” are healthy capitalistic ventures have a different
definition of what “market friendly” means. Maybe it means anything
that doesn’t through the Centers for Medicare and Medicaid Services.
Finally, the individual mandate isn’t a “technicality.” Democrats have
always belittled Republican challenges to Obamacare as quixotic long-
shot partisan ploys. Yet a number of them have been successful,
including a suit that found “cost sharing reduction” payments—designed,
like most of the law, to hide the cost of Obamacare by shifting cost to taxpayers while bribing insurance giants to participate—to be
unconstitutional. Obama, as his wont, simply ignored the courts.
If anything, in fact, it was the Affordable Care Act that was saved on
a “technicality.” As Erin Hawley reminds us in The Federalist, in NFIB
v. Sebelius, the Supreme Court rescued Obamacare by changing the
meaning of the individual mandate’s “penalty” to a “tax.” Yet, even in
that closely contested decision, “the essential feature” of a tax is
that “it produces at least some revenue for the Government.”
There is no revenue from the individual mandate anymore. Obamacare, we
were told at the time, could only function with an individual mandate.
How is it working now?
Even today, reporters struggle to perpetuate the individual mandate
sham. We recently learned, for example, that “Biden vows to bring back Obamacare’s individual mandate penalty for not having insurance.”
The severability question is an important one, but in many ways the
broader fight over the individual mandate is at the heart of competing
visions of governance. One philosophy rests on the notion that the
state should able to compel citizens to buy things the government tells
them are for the common good, and the other on the idea that markets
and individual choice are most effective way to lower costs and improve
Progressive, of course, have never been able to explain what governing principle they believe stops the state from forcing individuals to
purchase whatever politicians deem important enough. That’s probably
because their governing principles are predicated on whatever moves
their policy goals forward.
Watching Democrats come up with schemes to "catch Trump" is like
watching Wile E. Coyote trying to catch Road Runner.