Learning the Real Lesson of Obamacare
December 19, 2018 6:30 AM
The Affordable Care Act is a clumsy, clunky, ill-begotten legislative program.
‘Sabotage,” Paul Krugman calls it. Funny word, that.
Perhaps Professor Krugman, like so many progressives at the moment, has Russia on the brain.
The subject is the failure of the Affordable Care Act. And it may be the case that the ACA was a victim of вредительство — but not at the hands of Republicans, and still less at the hands of the federal judge who recently ruled the law unconstitutional. “Sabotage” in the Soviet context generally indicated a failure to perform one’s duty, or doing it so sloppily as to undermine the smooth functioning of the Workers’ Paradise.
I do not know what to think of District Judge Reed O’Connor’s ruling, in which he cleverly (perhaps too cleverly by half) turns Chief Justice John Roberts’s argument back on itself: Roberts disappointed conservatives by performing an act of jurisprudential yoga to find that the ACA was a constitutional application of Congress’s taxing power, since the fine associated with the individual mandate would in theory produce federal revenue. That fine has been set to $0.00, meaning no revenue, meaning no tax and no exercise of congressional taxing authority, if one hews closely to Roberts’s argument. Professor Krugman, in a column headlined “Conservatism’s Monstrous Endgame” — his hysterical partisanship grows more tedious and more embarrassing with each column — complains that the ruling is the work of a “partisan Republican judge” engaged in an “abuse of power.” You’ll note that Professor Krugman here mirrors President Donald Trump’s habit of dismissing as “partisan” the work of judges who annoy him. It may be that Judge O’Connor began with his conclusion and drew up whatever legal reasoning was necessary to get him there.
Even in that case, his ruling is more connected to the letter of the law than is, say, Roe v. Wade , or any other act of judicial imagination in that tradition. If we are all going to start being good textualists — and let’s hope for that — we should probably start with the first two items on the Bill of Rights, which somehow are in the Democratic legal mind less sacrosanct than the legislative dog’s breakfast that is the Affordable Care Act.
But the problem with Obamacare isn’t one federal judge. The problem with Obamacare isn’t Republicans. The problem with Obamacare is Obamacare.
The Affordable Care Act is a clumsy, clunky, ill-begotten legislative program executed with approximately the skill that a team of dead-average chimpanzees would bring to rebuilding the engine of a Ferrari GTC4Lusso. It was a mess, and it remains a mess — and that is not a view exclusive to Republicans. Democrats began working to get rid of parts of the law — notably the “Cadillac” tax that so annoyed their union constituency — before it was even implemented. (That tax has not been repealed, but its implementation has been delayed until at least 2022, at which point it most likely will be delayed again or removed from the legislation.) Exemptions and special considerations were handed out as freely as condoms at a Marin County kindergarten. Republicans hate the law — but Democrats have found a lot to dislike about it, too. The distance between Democrats’ stated preferences and their revealed preferences vis-à-vis the ACA is almost as wide as the gap between Professor Krugman’s reputation as an economist and his reputation as a newspaper columnist.
As The Editors wrote here after the federal ruling, Obamacare “addressed real, if sometimes exaggerated, problems, but did so at an unnecessarily high cost.” It also did so in an unnecessarily complicated and destructive fashion, in part because it tried to do too many things at once. The Democrats let political considerations trump considerations of good governance: They believed that if they could just get some kind of national health-care program into place, then they could tinker with it ad infinitum after the fact, believing with good reason that once Americans were hooked on the subsidies then they’d be willing to pay the price to service that addiction. Like the Palestinians, Republicans rarely miss an opportunity to miss an opportunity, and their contribution to the 2008 health-care debate was simply to repeat in Manchurian Candidate fashion: “We have the best health-care system in the world.” They never quite got around to asking why so many people were displeased with it.
The Democrats had what they believed was a once-in-a-generation opportunity to move bigly on health care, and they had enough votes that they did not require the support of a single Republican. They could have written the law in any way they liked. They wrote it the way they wrote it for many reasons. Two of those are cowardice and incompetence.
Bipartisanship, moderation, and compromise all are in bad odor just now, no less so with Republicans than with Democrats. The reasons for that have everything to do with culture and almost nothing to do with policy. In this splendid era of broad domestic peace and prosperity, the Left has convinced itself that our blessed republic is three tweets away from the Holocaust, and the Right has convinced itself that a handful of doggie-vitamin peddlers on AM radio are engaged in the last stand against the Khmer Rouge. We have Professor Krugman writing in the New York Times every week that “good people can’t be good Republicans,” that “it is now impossible to have intellectual integrity and a conscience while remaining a Republican in good standing.” And if the Affordable Care Act fails, that must be because of Republican wreckers and saboteurs.
And the kulaks must be liquidated as a class.
Of course, that is hysterical nonsense. And it should embarrass everybody involved in it. It does not, because most Americans now can be embarrassed only by the most superficial things.
If you hate people who have different political views and priorities than you do, or if you believe them to be villains who are necessarily acting in bad faith, then to seek common ground with them is a kind of moral treason.
If, on the other hand, you are a mentally normal adult with a smidgen of patriotism and a reasonable conception of civic duty, you take a different view of bipartisanship, compromise, and moderation. The project of learning to cooperate with citizens who have political inclinations and commitments that are at odds with your own has real value not because there is some metaphysical virtue in moderation but because there is a real, practical, here-and-now small-r republican virtue in stability .
Hate the other guy all you like — you still have to put the country first, which means putting your duty ahead of your hatreds.
The Affordable Care Act was passed in a party-line steamroller and substantially revised through the reconciliation process, making an end-run around ordinary legislative procedure. Imagine a different kind of health-care reform program: a compromise with features amenable to members of both parties and to both of the country’s major political tendencies, with wide buy-in from both elected officials and from the people they represent — a legislative program, in other words, instead of a political totem. Imagine further that rather than trying to sort out every jot and tittle of American health care in a single piece of landmark legislation that Congress instead was willing to put in the work to address separate concerns separately, taking a gradual and necessarily piecemeal approach that would stand a much better chance of working — and surviving — even if it failed to provide much in the way of high-protein partisan fodder for the fund-raising appeals.
Democrats in the majority act like they’ll never lose again; Republicans in the minority act like they’ll never win again. Everybody loves to abominate “gridlock,” but gridlock is the least of it: Scorched-earth tribalism produces actively destructive stupidity — something far worse than mere gridlock.
The Affordable Care Act is the most important piece of health-care legislation of our time. The program it sought to create never has been implemented in its entirety, a result of both Democratic and Republican preferences. Its constitutional standing remains an open question, at least so far as the U.S. District Court for the Northern District of Texas is concerned. Four justices of the Supreme Court also believed it to be unconstitutional in whole or in part. Oh, I know: more wreckers and saboteurs.
Question: Why should it be impossible to write a piece of health-care legislation that is so incontrovertibly constitutional that it does not invite a challenge on those grounds? Why should it be impossible to write a health-care bill that doesn’t produce a decade’s worth of political polarization and partisan resentment?
It is not impossible, of course. But if your answer to the questions above is: “Because the other guys are evil wicked saboteurs!” then you are part of the problem.