By Charles Kesler
As a candidate, Barack Obama used to joke about the sun breaking through the clouds when he started to speak. Lately, the sun god seems to have deserted him. The Washington Post/ABC News poll reports that six out of ten voters say they lack faith in him to do the right thing for the country. His health care scheme appears to be on life support, attracting about 38% approval across a range of polls. The economy teeters on the edge of a second recession. The Gulf oil spill, at least, is over-though the cleanup continues and the images remain indelible. Day after day, those belching black clouds mocked Obama's billowing oratory. They became an omen of subterranean Nemesis for this president who promised to heal the earth and calm the seas.
Judged by his own standards, however, Obama has good reason to take pride in his record. For his presidency already has accomplished a historic transformation of American government. Thanks to his victories on the bailouts, health care, and financial regulation, government's size, cost, and agenda have swelled enormously and are set to expand further over the long term. Obamacare may be controversial, but it's the law now. He's succeeded in what many liberal commentators and politicians, and most conservatives, too, thought impossible-launching a fourth wave of liberal social reform, adding to the storied legislative accomplishments of the New Freedom, the New Deal, and the Great Society.
But even as American government has lurched to the left in the past year and a half, American politics has shifted to the right. Instead of New Deal-style acclamation, Obama's orgy of state-building has been greeted by an entirely new grassroots conservative movement, the Tea Party, as well as a firming and inspiriting of right-wing opinion across the board. Gallup reports that 42% of Americans now consider themselves conservative, an all-time high, and only 20% call themselves liberal-margin of more than two to one. Independent voters are fleeing Obama in droves. His party will almost certainly suffer severe losses in 2010, not only in congressional seats but also in governorships and state legislative houses.
With the long-term momentum of American government and at least the short-term momentum of American politics pulling so strongly, so suddenly in opposite directions, something is bound to give. Either government will yield, or the people will.
The Long Game
As president, Obama has a longer time horizon than the congressional Democrats. Though he's concerned about 2010, his eyes are on 2012 and beyond. Despite a summer of bad news, his personal approval rating stands in the respectable mid- to upper-40% range, within striking distance of majority support, though the trend line (he was at 64% in early 2009) cannot be encouraging. But he probably figures that in the next two years his luck is bound to improve, and policies already in train will redound to his benefit. The economy will recover some, more troops will depart Iraq and Afghanistan, and the administration will earnestly embrace the appearance of fiscal austerity. Plus he knows running for office is what he does best.
Rather like Ronald Reagan after his party's 1982 thumping, Obama will argue he's a transformational president whose "change" policies have only begun to work. It's highly unlikely his economy by 2012 will dazzle as Reagan's did by 1984, but Obama already has an excuse for that. All along he's said that health care reform was the key to economic health, that without the former the latter was unsustainable; and since Obamacare will not be fully implemented until 2014 or so, safely after the election, the economy cannot be expected to look very robust just yet. This isn't a very plausible argument, but it is consistent.
One thing you will never see Obama do, no matter how badly the Democrats fare in 2010, is eat crow the way Bill Clinton did in his first term. Obama is too proud and too ideological for that. You won't catch him announcing in next year's State of the Union address, "The era of big government is over." Of course, Clinton would have been in a very different situation had he succeeded in enacting Hillarycare before his party lost control of the House and Senate in 1994. But after his health care reform's ignominious death in a Democratic-controlled Congress, he had little choice but to triangulate in order to save his presidency.
By contrast, Obama has huge legislative victories that he will be eager to defend because they're the jewels in his crown-and because without them, he cannot win the still longer game he's playing. That game is all about preserving and perpetuating the era of big government. It's about building a bigger and better state that will grant people new kinds of rights and at last achieve a new kind of national community-a "more perfect Union," as he terms it, meaning a more perfect social democracy.
In that protracted effort, Obamacare is key. It's unpopular now, but he's wagering that the American people never met an entitlement they didn't like eventually, whether out of sentiment, self-interest, or simply habit. The more one ponders Obamacare's electoral, policy, and longer political implications, the more it stands out as the centerpiece of his whole political enterprise. Stop it-repeal it, we must now say-and you have a good chance of stopping the transformation he seeks. Fail, or worse, don't even try, and you permit what can be called, without exaggeration, gradual regime change at home. For the health care question involves, in its longest reach, nothing less than the form of government and the habits and character of the American people.
Remaking America
Obama did not conceal the special status of the health care issue. In the speech announcing his presidential candidacy in February 2007, he vowed "that we will have universal health care in America by the end of the next president's first term." He said repeatedly that our existing health care system not only costs too much, but was unworthy of American ideals. "We are not a nation that lets hardworking families go without the coverage they deserve; or turns its back on those in need," he told the American Medical Association in 2009. "We are a nation that cares for its citizens. We are a people who look out for one another. That is what makes this the United States of America." Actually, every nation cares in some degree for its citizens; looking out for one another is not a distinctively American trait but a minimal part of civic friendship in any decent society. But then his point was that America, despite its citizens' remarkable individual virtues, had far to go to be a decent society. The view is widely shared in his family and his administration. Michelle Obama used to say in her standard campaign speech that the country is "just downright mean," though she implied the problem was curable. Her husband "knows that at some level there's a hole in our souls," she often said, and he "is the only person in this race who understands that before we can work on the problems, we have to fix our souls. Our souls are broken in this nation."
Part of the soul-fix was to reawaken Americans' belief in "the audacity of hope," the notion that big changes were still possible in politics if only the people would put aside their cynicism and fear, enlist behind a leader capable of seizing the moment, and together chant, "Yes, we can." The Obama campaign seized that moment and did not let go, but the point was not merely to win the election but also to change the country. He knew it was impossible to fix the American soul without working on "the problems," too, without showing that change could be embodied in new programs and institutions that would in turn shape a better American soul.
Of the myriad problems Obama wanted to tackle, health care was the biggest and the most emblematic of America's moral failings. When he addressed a joint session of Congress in September 2009, Obama quoted from Senator Teddy Kennedy's posthumous letter to him on precisely that point. Health care reform is the "‘great unfinished business of our society,'" which is "‘decisive for our future prosperity'"; but also, Kennedy emphasized, it "‘concerns more than material things.'" It is "‘above all a moral issue: at stake are not just the details of policy, but fundamental principles of social justice and the character of our country.'" Obama seconded Kennedy's point enthusiastically.
From the Right and Left, critics have questioned President Obama's decision to spend so much of his first 18 months on reforming health care rather than reviving the economy and restoring jobs. It was a fundamental mistake that will haunt the rest of his term, they say. A few interpret it not as a miscalculation but as a case of tunnel vision, like a pilot so obsessed with a sticky compass that he forgets to fly the plane as it heads right into a mountain. On Obama's own terms, however, the dogged persistence on health care-despite the economy, despite the plummeting polls, despite Scott Brown's election to Kennedy's place in the Senate-was progressive statesmanship of the highest order. Reforming health care was the defining issue of our time. And more importantly, it was the royal road to a less cruel, less selfish, less capitalist, more liberal America, and he would not abandon it or be forced off it.
As he told Congress, "we did not come here just to clean up crises," even one as big as the Great Recession. "We came to build a future." And the issue "central to that future" is health care. "I understand," he confessed, "that the politically safe move would be to kick the can further down the road-to defer reform one more year, or one more election.... But that's not what the moment calls for." We came here not "to fear the future" but "to shape it," to do the "great things" that "will meet history's test." He concluded, "That is our calling. That is our character." And that had been his theme all along. "Let us transform this nation," he implored in 2007. After the Iowa caucuses, he hailed those voters "who have the courage to remake the world as it should be," and after the New Hampshire caucuses he declared, "Yes, we can repair this world. Yes, we can." As election day 2008 approached, he promised, "We are five days away from fundamentally transforming the United States of America."
Those words mean this will be a different country when he's finished with it. If, Rip Van Winkle-style, one had slept though the Obama Administration, one would awaken, as it were, in a new land. The old word for such a profound change was revolution. As a good American progressive, however, Obama reckons his revolution will be one in a series, an unending series generated by progress or history itself. His reforms will connect to Woodrow Wilson's, Franklin Roosevelt's, and Lyndon Johnson's before him, and others yet to come, and all these together will constitute a steady evolution of American society and politics, a continual updating. That sounds reassuring, insofar as it promises to take the sting and surprise out of political change; but that predictability or security comes at the expense of liberty, because there is no choice about the whole of liberal-style progress and evolution. You could choose whether or not to make a revolution; a revolution might be defeated or reversed. But you don't get to deliberate about the inevitable, which is how progressives think of History. As Americans have been told for generations now, ad nauseam: you can't turn back the clock.
Shaping History
By the same token, you can't turn the clock ahead, either. As Orson Welles used to promise in those commercials for Paul Masson, no liberal revolution is ever sold before its time. Thus after "a century of trying," Obama noted, the time was ripe for health care reform. The system was at "a breaking point," reform was "a necessity we cannot postpone any longer," and "for the first time, key stakeholders [the drug companies, the American Medical Association, the Association of Health Insurance Plans, etc.] are aligning not against, but in favor of reform." We're "in one of those rare moments where everybody is ready to move into the future," he said. Even if successful political change is always timely, however, someone must take responsibility for testing its timeliness, and so there is something important left for a politician to do. Still, History's lead role turns even the most ambitious politician into a supporting actor-and one who has very little say-so over the script.
This is a deep problem in the political psychology of progressive liberalism, and one can see Obama chafing against the limits of his supporting role. Reform hardly seems inevitable when you're fighting for it tooth and nail, after all; shouldn't Obama get the lion's share of credit for pushing ahead with reform even after Scott Brown's election seemed to have killed it? That took audacity, which inevitability-the foreknowledge of success or the optimistic certitude of victory-would tend to detract from or even dishonor. It's well known that Obama's favorite pronoun is "I," but I suspect it's not merely egotism that prompts him to speak in the first person, to claim so much credit and, as the philosophy professors say, "agency" in so many matters. He doesn't want to be a mere tool of History. As at least a stepchild of the civil rights movement, he shares its sense of having made history. And the postmodern strains in his thinking lead him, at moments, to doubt whether such a thing as Progress or rational history even exists.
For whatever reasons, his favorite formulation is that he seeks to "shape" history. "What this generation has proven today," he declared in Iowa last March after his health care victory, "is that we still have the power to shape history. In the United States of America, it is still a necessary faith that our destiny is written by us, not for us." A "necessary faith" is not necessarily true, of course, and shaping history leaves ambiguous just how much freedom or influence human beings actually have. Do we shape matters decisively, or only at the margins? And then he repeated, as if for emphasis: "Our future is what we make it. Our future is what we make it." In fact, that's the deeper meaning of his slogan, "Yes, we can," which he called in Iowa "the creed that continues to define the character of this country." America stands for the ability to change, the openness to change, the willingness to constantly remake ourselves-but apparently for no definable purpose, natural, divine, or historical. Jon Stewart, the comedian, caught the dilemma perfectly when, joshing the president over his equivocations on the Ground Zero mosque, he said Obama's slogan, as amended, now reads: "Yes, we can. But...should we?"
When dealing with conservatives, however, Obama's confidence in History's purpose and beneficence is miraculously restored. "I am not the first President to take up this cause," he told Congress last September, "but I am determined to be the last." As Harvey C. Mansfield pointed out in the Weekly Standard (February 8, 2010), the key to Obama's political success is the way he presents himself as somehow beyond or above ordinary politics. He thinks of himself, and wants us to think of him, as a nonpartisan or postpartisan figure. To the extent he must indulge in partisanship now, it's for the sake of putting an end to it in the future. "His politics is apolitical," Mansfield argued. "It considers its measures to be progressive, and progress to be irreversible." In other words, Obama's postpartisanship is liberal hubris by another name. Liberals cursed by such hubris imagine they have the keys to the kingdom of History; they alone get to bless or condemn forevermore. Once Obamacare passed, it instantly joined the ranks of liberal social programs that were here to stay, that were permanent parts of the modern state, world without end, Amen. To attempt to repeal it, such liberals think, would be not only foolish, unheard of, insane, and impossible, but downright immoral-i.e., against the laws of History. Evil-doing, in short, by evil-doers, if ever there were any.
The Case for Repeal
Which is why conservatives' resolve to repeal the health care act induces apoplexy among liberals. Conservatives are supposed to be good losers, resigned to the Left's control over the steering wheel and accelerator but cheerful about getting to apply the brakes (not too suddenly or firmly, please) in the curves. The notion that the clock could be turned back, that some limit to the state's growth could be discovered and enforced, that the people would hold in their hands, inspect carefully, but at last reject the Holy Grail of welfare state programs, for which the Left has been questing, just as Obama said, for a hundred years-why, the liberal mind reels. Even more than Reagan's victories, or Clinton's ignominious failure to pass nationalized health care, this reversal would raise doubts in the liberal mind about the liberal project.
Losing Obamacare after winning it would, at the least, be a serious blow to liberalism's sense of its own inevitability-the quasi-religious faith so central to all progressivism, and so crucial in disarming the Left's opponents. So conservative resistance to Obamacare must begin by confronting the historical voodoo by which liberals will try to frighten the Right into believing that resistance is futile, that repeal is doomed. These gestures are best understood as a kind of war dance, like the Haka performed by New Zealand's rugby team before a match, designed to intimidate the opposing players. But nothing is inevitable in politics, at least nothing of this sort; and conservatives should laugh at this attempt to get them to cooperate in their own defeat.
Of course, repeal will be difficult. President Obama can be counted on to veto any repeal legislation that reaches his desk. It will take a Republican House, Senate, and president to accomplish repeal, therefore, which means it cannot happen before 2013. In the meantime, if the GOP wins control of one or more Houses in 2010 or even comes close, it may be possible to choke off funding for the new health care bureaucracies, thus slowing or blocking the law's implementation. The Supreme Court may well invalidate parts of the law before 2013, but then again it may not: conservatives' political strategy cannot count on favorable judicial action, but it will have to adjust to-and probably should anticipate-unfavorable action. Amid all these considerations, the crucial factor will be the GOP's (and perhaps an increasing number of conservative Democrats') development of the case against Obamacare, which must then be put to the American people proudly and in broad daylight.
The case for abolishing Obamacare has three parts, based on its awful effects (a) on health care, (b) on our political system, and (c) on our character as a people. The first of these, Obamacare's deleterious effects on health care quality, cost, innovation, and accessibility, has been well made already by conservative policy analysts and, less well but still effectively, by conservative politicians. On their merits, these arguments should have been enough to defeat Obamacare, and almost were. Floating in the debate's background so far have been anxieties about the legislation's effects on our constitutional system's balance of power and on the American character. These concerns will need to be more thought-through and clearly articulated in the days to come, because to clinch the argument conservatives need to show that the Patient Protection and Affordable Care Act is not merely bad or mistaken policy but somehow dangerous to our way of life. Legislative mistakes can be corrected, after all. Their pollsters are already warning Democratic congressmen to keep claims about the law "small and credible," to stick to "personal stories" of people who will benefit from it, and above all to promise to "improve" it. They're trying to shrink the target. Conservatives need to expand the target, and to emphasize that the stakes of Obamacare include nothing less than the future of self-government in America.
Policy and Politics
All along, Obama knew that selling national health care to the American people would be a delicate operation. In the primary campaign, he positioned himself to Hillary Clinton's right on the issue (he was against the individual mandate back then, before he was for it as president). Less well remembered is that he tried to sound more conservative than John McCain, too ("John" was going to tax your insurance benefits; not Obama, who promised tax cuts to help people afford insurance). Once he was president, Obama turned the details over to Congress. (Why wasn't the plan called "ObamaDon'tCare"?) In the almost 60 presidential speeches he gave calling for health care reform, no words came more readily to his lips than, "If you like your doctor, you'll be able to keep your doctor; if you like your health care plan, you'll be able to keep your health care plan." Those words were usually greeted by vigorous applause. Sometimes he was even more emphatic. In July 2009 he said, "If you've got a health care plan that you get through your employer or some other private plan, I want you to keep it." (Emphasis added.)
Nothing you like about health care will change, he assured his listeners, implying that since 17 of 20 Americans like their health coverage, hardly anything would change at all-except marginally for the better: he promised to reduce premiums for these satisfied customers. The reason for his caution was obvious. The vast majority of Americans had more to lose than to gain from his plan. Hillarycare had crashed on take-off precisely because the public had come to fear the scheme's costly, painful changes. Obama could not let that happen again, so he presented his plan in the most conservative or change-averse way possible. His bold promises to fundamentally transform the country still hung in the air, but he did his best to suggest he could change the whole without affecting the majority of the parts.
Obamacare's biggest changes, he promised, would be to extend the existing system's excellences to the 40-some million uninsured, to lower costs for everyone by cutting hundreds of billions of dollars in waste, fraud, and abuse out of the system, and to prevent insurance companies from acting like insurance companies. None of these changes, he emphasized over and over, would threaten the existing health coverage of most Americans. It was the inherent implausibility of that teetering structure of promises that finally did it in, sinking Obamacare in the polls but not in Congress. To the congressional Democrats, Obama emphasized, on the contrary, the historic importance of their vote: this was their only chance to fundamentally transform the country!
He assured them it was good politics, too, in 2012 and even more so in the long run. But the public is not singing "Happy Days Are Here Again," and the Democrats' latest FDR-moment has yet to earn the gratitude they expected or at least hoped for. They might reflect on the differences between, say, Social Security and Obamacare. As the name suggests, the former attempted to make Americans secure, or at least feel secure, in an age of economic insecurity and depression. By contrast, Obamacare makes most Americans feel less secure, not more. They fear, and rightly so, that it will erode the quality and accessibility of care they now enjoy, and endanger affordability and medical innovation in the future. Worse, it forces responsible people who pay for their insurance to subsidize irresponsible people who don't-thus taxing the many for the sake of the few, instead of, as FDR preferred to do, taxing the few for the sake of the many.
Besides, Social Security was a relatively straightforward scheme, organized like a social insurance plan even if recipients soon received much more than they had contributed, counting interest. The Rube Goldberg mechanism of Obamacare is much harder to describe. In the first place, there are large tax increases: the Medicare payroll tax rises and is joined by a new 3.8% levy on "unearned income"-for individuals earning more than $200,000 and families more than $250,000, as well as sellers of homes who earn capital gains of more than $250,000 for an individual and $500,000 for a family. None of these taxes is indexed for inflation. Eventually, so-called Cadillac insurance plans will be hit with a 40% excise tax. In addition, medical-device makers (e.g., manufacturers of wheel chairs, C.T. scanners, heart stints, artificial knees, etc.), drug companies, tanning salons, and insurance companies have to pay special levies.
These enormous revenues will fund the extension of health insurance or Medicaid to the uninsured (actually, about three out of four of them; the rest fall through the cracks), and will subsidize rates for individuals and families whose employers don't provide health coverage. The eligible policies will be sold through a set of State Exchanges set up by the Act in 2014. But then to prevent insurance companies from growing rich from these new revenues, the insurers are sharply limited in their ability to raise rates or exclude coverage. Their rates will be monitored by state and federal authorities who will enforce "medical loss ratios," in effect requiring the companies to spend 80 to 85% of their revenues on claims regardless of the firms' administrative expenses and profits. And instead of offering a range of policies including low-cost "catastrophic" coverage, the companies will be strongly encouraged to sell to everyone comprehensive policies with "minimum coverage standards," mandating a long list of expensive services like maternity care, drug rehabilitation, and mental health treatment. Finally, insurers will be forced to issue policies to anyone regardless of how sick they are, and will be forbidden to charge sick clients more than healthy ones.
What are the Act's likely consequences? These have been well studied by the clear-sighted conservative critics who've written about Obamacare, and who've elaborated cogent free-market remedies for our health-care problems. We should be grateful, inter alios, to John Goodman, David Gratzer, Jeffrey Anderson, James Capretta, Michael Tanner, Grace-Marie Turner, and Sally Pipes (my wife), whose lucid book The Truth About Obamacare has just been published. Here I summarize their conclusions.
The new taxes will depress the economy and discourage medical investment and innovation. The subsidies and mandates will sharply increase demand for doctors and medical services. Measures to reduce waste, fraud, and abuse-code words for cutting Medicare and Medicaid payments to doctors and hospitals-will, together with higher taxes and regulatory pressures, drive many doctors into early retirement or into another line of work. As demand surges and supply contracts, prices for medical treatment will go up, as will insurance premiums. (The tax increases on drugs, medical devices, and insurance companies will be passed on to consumers.) With government trying desperately to suppress these price spikes, shortages of medical personnel and services will occur, which will lead to long waiting lists, rationed care, and decreasing capital investment. The restrictions on insurance companies will prevent them from earning a reasonable return on investment, which will eventually drive them out of business or into the arms of the federal government. The "public option," melodramatically sacrificed by the president and the House Democrats to get this "middle-of-the-road" plan, will come back again, only this time not as an option.
In short, it's very unlikely that Obamacare, as designed, will work or will work for very long without triggering a more radical crisis in American health care. As Obama said after its passage, "this isn't radical reform.... But it moves us decisively in the right direction."
A Government of Men
Among its other effects, this act marks a new stage in the decline of constitutional government in America. One sign of this was House Speaker Nancy Pelosi's remark, "we have to pass the bill so that you can find out what is in it, away from the fog of the controversy." After shepherding the equally massive financial regulation bill into law, Senator Christopher Dodd was moved to say something very similar: "No one will know until this is actually in place how it works." In late August, Senator Max Baucus, Finance Committee chairman, chimed in: "I don't think you want me to waste my time to read every page of the health care bill....We hire experts." These statements make both an epistemological and a political point. The first is that these bills are so long, complicated, and unreadable that no one who isn't an expert can possibly decipher them. That implies, in turn, that no amount or quality of democratic deliberation can clarify them to citizens, and in most cases to legislators, in advance. Indeed, Pelosi suggests that political debate itself, "controversy," mostly dims public understanding by generating "fog." The second point is that neither she nor Dodd nor Baucus is especially troubled by this breakdown in democratic accountability. With this kind of legislation, they imply, there's no choice but to trust the experts-not merely those who patch the law together, but perhaps more importantly those who implement it. For the truth is that this kind of bill, almost 3,000 pages long, will mean what the bureaucrats say it means.
Or if one wants to be generous, this kind of bill will mean what the bureaucrats, in conjunction or conspiracy with their congressional overseers, say it means. In short, these bills are not so much laws as administrative to-do lists. They are contrivances fit only for the modern liberal state, ambitious to regulate all local and state affairs from the center, which means through a bureaucracy of experts or so-called experts. The result is not a government of laws but of men, albeit men who think themselves wise. You might think that high-ranking officials like Pelosi, Dodd, and Baucus would rebel at becoming appendages of the administrative machine, that, valuing their duties as lawmakers so highly, they would insist on reading and even writing the bills themselves. In the past, congressmen did rebel against, as one of them put it, becoming part of "a city council that overlooks the running of the store everyday." But once the national government assumed, in political scientist John Adams Wettergreen's phrase, "responsibility for the socio-economic well-being of every American," then somebody had to mind that store, and Congress cut its pattern to its cloth.
Obamacare creates 159 new bureaucracies-programs, commissions, boards, and other agencies. Some are quite small, but almost every one empowers unelected officials to wield power over the future content and provision of health care. There's the Pregnancy Assistance Fund, the Elder Justice Coordinating Council, and the Cures Acceleration Network, for example. In most cases the Secretary of Health and Human Services is charged with creating these entities-part of the breathtaking power delegated to the secretary under the Act's provisions. In fact, it's not so much the length of the Act as its vagueness, incompleteness, and amorphousness that mark it as a new-fangled administrative statute, granting power to a few to rule according to their wisdom and with very little reference to the many's consent. Which is to say, the law's meaning is deliberately indeterminate, left vague so as to give maximum discretion to the unholy trinity of bureaucrats, congressional staffers, and private sector "stakeholders" who will flesh out the Act with hundreds, probably thousands, of pages of regulations, and then amend those as needed later on. When favored interests and constituencies want to appeal a regulatory decision, they will always find a helpful congressman ready to intervene on their behalf with the very bureaucracy he helped create.
This new kind of statute-one hates to call it law-is not meant to be "a settled, standing rule," as John Locke defined law. On the contrary, it is meant permanently to be in flux, always developing and subject to renegotiation. It is law constantly suffused with wisdom, albeit constantly changing wisdom. It is what passes for law under a "living Constitution."
In fact, Obamacare is an excellent test case for how the original U.S. Constitution is faring against the living Constitution. One implication of the latter is that the difference between constitutional and statute law tends to break down; the capital-C Constitution, the framework and limits of government, dissolves into the small-c constitution, how we govern ourselves nowadays. According to the living Constitution Obamacare is perfectly constitutional. The only thing emphatically unconstitutional would be turning back the clock-in this case, trying to repeal the collectivization of health care.
But conservatives are challenging this one-way liberal ratchet by mounting vigorous attacks on the statute's constitutionality, by the standards of the genuine Constitution. A score of state attorneys general has sued claiming that Obamacare's individual mandate-requiring everyone to purchase health insurance, under penalty of law-exceeds Congress's power under the Commerce Clause. The argument, pioneered by libertarian law professor Randy Barnett, insists that never before has Congress asserted a power under the Commerce Clause to compel citizens to purchase a product from a private company. It's a good argument; but will Justice Anthony Kennedy buy it? Barnett himself sounds slightly pessimistic. Another very smart libertarian law professor, Richard A. Epstein, contends that Obamacare violates the Fifth Amendment's Takings and Due Process Clauses because it denies insurance companies a reasonable rate of return on their investments. Ingenious, but again it will have to persuade a Court that is divided down the middle about first principles.
Obamacare is vulnerable to other originalist objections as well. The Act is rife with unconstitutional delegations of legislative power to executive agencies and, most flagrantly, to the Secretary of HHS. But the problem with all these well-founded legal objections is that the Supreme Court has four-and-a-half votes, on average, for the living Constitution, and the same number for the principled Constitution, however imperfectly understood. That last caveat is necessary because conservatives on the Court disagree among themselves on whether and to what extent "judicial restraint" requires them to defer to Congress in its exercise of regulatory authority over the economy. Politically, a loss in the Court would be a major setback for the repeal effort because a lot of Republican and Democratic congressmen-and many American citizens-have acquired the bad habit of reflexively deferring to the Court on questions of constitutionality. Thomas Jefferson and Abraham Lincoln, among others, disagreed with this unthinking deference-but don't expect to hear much about them in the coming political season.
American Character
It would be much better for the republic, therefore, if the people, acting through their elected representatives, repudiated Obamacare rather than trusting the Court to do it. A popular repudiation would not only have greater and more enduring political impact, it would reassert the people's right to defend their own Constitution against the corruptions of big government and its "stakeholders."
The question is whether the public has the character, the love of freedom, to assert itself justly and intelligently in this predicament. For President Obama's campaign to transform the country is only the latest installment in modern liberalism's long-running project to change America by changing Americans' relation to their government. For a century, the Left has argued that the old Constitution was obsolescent, an 18th-century artifact needing thorough modernization, which liberals were happy to supply. Key to its reform was changing the scholarly, and eventually the public, interpretation of its purpose: not to limit government, to separate powers, and to keep the national government devoted to national affairs, but to liberate government so it could grow easily, to combine powers so that experts could direct government more efficiently to good purposes, and to expand the universe of good purposes by urging the national government to take responsibility for state and local affairs all the way down to the socio-economic well-being of every American.
Behind this changed view of government was a new view of rights. The American Founders held that human rights come from God and nature, and carried with them a religious and natural obligation to be used morally, i.e., for the sake of human safety and happiness. We needed to form government to secure our rights, but we needed to be vigilant lest government endanger those very rights. Freedom never strayed far from the virtues essential to its purpose and to its defense.
Most liberals scorned this account as unhistorical or too individualistic or not sufficiently socialistic, or some combination of those faults. To supersede it they recommended a more historical and social narrative. History is the story of the evolving sense of human dignity, liberals like Woodrow Wilson argued, as recognized in and by the cultures and reflected in the governments of different ages. Rights are thus a cultural or historical product, not something natural or divine-dependent upon the state of society and government, rather than always potentially opposed to them.
From these premises American liberals deduced a new kind of rights that over the past 80 years have come to dominate our politics. Entitlement rights, as we now call them, are socio-economic benefits promised by government to broad classes of people. They include the rights to a job, to a decent home, and to a good education that FDR spoke of in his proposal for a "second Bill of Rights," and the right to "adequate medical care" that's at the heart of Obamacare. The logic behind entitlements is that in return for ceding greater power to government, government grants more rights to the people (or to favored groups: Obamacare sets up many offices and commissions directing special assistance to women, American Indians, and other "underrepresented" minorities).
At the core of the "dependency" problem of Big Government is this logic. There is nothing to fear from Big Government because the bigger it gets, the more rights we get. Since our rights are dependent on government, why shouldn't we be? That attitude ultimately undermines individual character and self-respect, and in America this is a chronic problem. Obamacare would make it acute.
Despite what Obama often says, the alternative to all-provident government is not selfish indifference or "the Social Darwinist idea." As observers from Alexis de Tocqueville to Marvin Olasky have pointed out, America used to have a vibrant civil society that teemed with churches, mutual insurance funds, and other voluntary associations that helped Americans take care of themselves and of one another. In some ways we still do, of course, though Big Government has supplanted more and more of these functions. State and local governments provided another indispensable part of the social safety net. Even the progressives' bête noire, the old-fashioned political machines like Tammany Hall, performed important welfare functions. This was never a "just downright mean" country. Though it lifted the safety net to the federal level, Social Security in several ways harked back to the older view of American character. It rejected the spirit of the dole and tried to avoid the entitlement mentality by insisting it was an insurance program. What's more, its bureaucracy was devoted to cutting checks on a regular basis, not to ruling one-sixth of the national economy and dictating how recipients had to spend their benefits.
Far from doing no harm, or even decisively improving American character-fixing the purported hole in our soul-Obamacare would almost certainly degrade it, in several ways.
On the moral side, the entitlement debate usually concerns the damage done when a people gets hooked on an endless supply of free goodies. Though the president's health care plan is about turning health care into just such a narcotic, it is also about the unpleasant business of coming down from the entitlement high. From the beginning, he emphasized the need to reduce the share of GDP flowing to doctors, hospitals, drug companies, and insurers. His strongest argument for attending to the problem immediately was that the rising cost of health care would bankrupt the government and the country. His chief rhetorical difficulty was precisely to convey both messages-that he was turning the "right" to health care into an entitlement for everyone; and that we had to stop spending so much on health care-without confusing his audience or contradicting himself. He never quite succeeded. The majority couldn't understand how even Barack Obama could expand access to health care and contract it at the same time.
In this respect, the debate was a harbinger of many more to come about the costs of the welfare state. It exposed the dirty little secret of entitlement rights, that what the government giveth, the government taketh away.
The "right" to health care means the right to limit health care. The right to "adequate medical care" implies that no one may have more than adequate (that is, excellent) care, until the "least advantaged" among us, to use John Rawls's term, have received what the government deems adequate care. Indeed, the "right" to health care may go further than that: to the contemporary liberal, doesn't the coexistence of adequate and excellent care imply that the Americans stuck with the former are second-class citizens?
Obamacare inclines America in the long run to some combination of the following: the sullen acceptance of government-distributed scarcity, envy of people who have more than their fair share of health care, and growing alienation from a system that tries to play God but does so without wisdom, justice, or mercy. These toxic sentiments will be familiar to anyone who has lived under socialism, for they are its concomitants. When added to the caustic effects of dependency on government, they amount to a prescription for an American character increasingly unfit for self-government.
As Ronald Reagan once warned, you can't socialize the doctors without also socializing the patients.
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