Obamas Affordable Health Care Act is in the news again, as its individual mandate underwent oral arguments before the Supreme Court last week. In my own opinion, the mandate is indeed bad policy and unconstitutional, but I have my doubts the Court will agree. It has upheld virtually every law that has crossed its path since the New Deal.
Id like to focus on the political element of this controversy. If any one domestic achievement embodies the Obama presidency so far, it is his health care legislation. Republicans vying for the GOP presidential nod have often competed with one another for the distinction of being most opposed to this legislation.
Romneycare and Obamacare are essentially the same, Gingrich said on Good Morning America in February, comparing the reform Mitt Romney signed as governor of Massachusetts with one of Obamas most detested programs among conservatives. The Gingrich campaign then sent out a fundraising appeal asking supporters to help stop Obamneycare!
Romneys defenders have cited differences between the two programs: Romneycare didnt involve tax increases or Medicare cuts, wasnt as long, complex, partisan or unpopular, and, being limited to Massachusetts, was not a one-size-fits-all imposition upon the whole countryand so is not held to the same constitutional standards.
Yet fundamental similarities remain. Both Obamacare and Romneycare empower bureaucrats to determine what conditions are covered, establish individual insurance marketplaces and several tiers of insurance, such as gold, silver and bronze, and restrict how insurers price premiums based on health status or gender. They both extend coverage to low-income Americans, force many employers to cover their workers and their workers children up until the age of 26, and authorize government to eliminate caps on insurance coverage and to impose caps on consumer costs.
Last but certainly not least, both Obamacare and Romneycare impose an individual mandate on consumers, forcing them to buy insurance. This is the part most favored by the insurance industry. It is also the part, at the federal level, being challenged on constitutional grounds.
In substance, Romneycare would indeed seem to be very similar to a state-level Obamacare, which might improve Gingrichs standing on the issue if it werent for the inconvenient fact that Gingrich supported Romneycare back in 2006. At the time he said:
The most exciting development of the past few weeks is what has been happening up in Massachusetts. The health bill that Governor Romney signed into law this month has tremendous potential to effect major change in the American health system.
Gingrich hailed Romney for working toward 100 percent insurance coverage for all Americans and encouraging personal responsibility by mandating that individuals who can afford to purchase health insurance do so. As recently as May 2009, after Obamas inauguration, Gingrich advocated a federal individual insurance mandate. If you have must-carry, he said in a conference call hosted by Siemens Healthcare, then the insurance companies have told us that we will have must-issue, and you can therefore have a system where you dont have to worry about cherry-picking and maneuvering.
Although Gingrich is not doing so well in the polls, he still represents a major chunk of the Republican electorate and harkens back to the 1990s GOP. So it is worth picking on him. The individual mandate is as direct an assault on individual liberty as anything else in Obamacare or Romneycare, and yet Gingrich was enthusiastically supporting it even as the Tea Parties awaited the Democratic presidents proposal for national health coverage with apprehension and anger.
As for Rick Santorum, he also favored individual mandates back in the 1990s as an alternative to Hillary Clintons health care plan, and ten years ago voted for George W. Bushs Medicare D planthe largest expansion of the entitlement state since the Great Society.
How ominous is the individual mandate? Consider one of the most thoughtful public criticisms, voiced in the last presidential election season:
Understand that when Senator Clinton says a mandate its not a mandate on individuals to purchase it... [In Massachusetts] in some cases there are people who are paying fines and still cant afford it and so they are worse off than they were. They dont have health insurance and theyre paying a fine. And in order for you to force people to get health insurance youve got to have a very harsh, stiff penalty.
The anti-Washington establishment spokesman here? Senator Barack Obama. Indeed, throughout the 2008 campaign, he consistently opposed the individual mandate, saying repeatedly that it was a clear defining distinction between him and Hillary Clinton. The subject came up in one primary debate after another, taking a whole ten minutes of one in February 2008. That month he echoed the theme in an interview with Ellen DeGerenes:
[Clinton would] have the government force that every individual buy insurance and I dont have such a mandate because I dont think the problem is that people dont want health insurance, its that they cant afford it.
Whether Obama changed his mind or was lying through his teeth is not the point. The point is, in a Democratic primary, he found this difference of opinion an important one in distinguishing himself from Clinton to make him sound more reasonable, more wary of burdensome government authority over the individual. As president, he pushed through the mandate after all. Meanwhile, Gingrich, Santorum, and Romney have supported the individual mandate and universal coverage, although favoring other ways to go about it.
This is the extent of the national debate on this issue. Two parties fighting over a corporatized health care system with subsidies and individual mandates, each one taking the position that it opposed a few years ago. A more honest debate might entail progressives pushing a full-blown socialized system pit against a true free-market alternative. In my view, a true departure from politics as usual would be a proposal to get government out of health careto do away with taxes, regulations, licenses, mandates and subsidies, to allow free individuals and communities, working through charity and the free market, to provide health care for the peoplea system much closer to what existed before the federal government invaded the health care sector in the 1960s and began driving prices up. Instead, we can listen to the masterminds behind Obamacare, Romneycare, Bushs Medicare D, and a dozen other big-government/big-business programs, all of which increase costs and decrease public access to medicine.
Republicans are accustomed to accusing the Democrats of socialistic policies and ambitions. This critiques validity depends largely on definitions. Most Democratic policies are hardly socialist in the Marxist sense, yet they do involve socialistic elements coupled with corporatism to achieve a sort of liberal statism, one that does not dissolve big business or the profit motive, but still strips away individual liberties and property rights while building up the bureaucratic state. Is an individual mandate backed by the insurance industry, without a public mandate but with massive expansions of government power and regulations in the name of guaranteeing universal coverage, an example of socialism? Look in a mirror, Mitt, Newt and Rick. If its socialism when Obama does it, what does that make you?
THE POWER OF HABEAS CORPUS IN AMERICA: From the Kings Prerogative to the War on Terror
As perhaps the most important legal protection, habeas corpus has a rich history from medieval England to modern America involving opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty.