Archive for April, 2012

Long-term electoral trends in the United States

Its time to take a break from the rough-and-tumble of everyday politics to take a wide look at our political system. This post will tell you what our government is likely to look like for the foreseeable future. There are many factors which determine who makes up our government, and I’ll break down the know-able factors here and tell you which party is likely to control the government over the next decade or so. We’ll look at the Presidency, the US House of Representatives and the US Senate.

The Presidency

The US President is chosen by the Electoral College, which gives roughly proportional votes to the winner in (almost) every state. Importantly, the person who wins the nation-wide popular vote  is almost always the winner of  the Electoral College vote. These votes are close mirrors of each other, so it is important to look at the overall national voting trends when determining how future Presidential elections will play out.

National voting trends favor the Democrats. Democrats are overwhelmingly the party of young and minority voters, while Republicans are the favorite of white and elderly voters. Research shows that voters tend to stick with whatever party they join at their first vote. It also shows that “age cohorts acquire a propensity to vote or not to vote that proves ‘sticky’ over time.” (PDF, page 19) These facts suggest that young voters, whose turnout was especially high and especially Democratic in 2006-2008 (and looks to be close to the same this year), will continue to vote often and vote Democratic in the future. (more after the break) Continue reading

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Paul Ryan has a debt-reduction plan like Bush had a plan for post-Saddam Iraq

That is to say, Republican Representative Paul Ryan has no debt-reduction plan. He has a wish list, an outline maybe. There are certainly bullet points. But Paul Ryan and his Republican Party have no plan to make a dent in our debt.

So why isn’t Ryan’s much-discussed budgetary “Roadmap” a “plan”? Because it doesn’t actually say how it will achieve the debt-reduction it promises! Like Bush, Ryan will give you all the good stuff up front: “Saddam’s military will be no match for the US” or “We’re giving out big tax cuts!” but when it comes to the next step, they’re both a bit clueless: “Wait, we have to do something with Iraq after Saddam’s dead?” and “Wait, I have to pay for my tax cuts and then find trillions more to reduce the debt?”

Ryan is very specific about how he will increase the debt. He says that he will vastly lower taxes for the richest Americans. For example, Ryan would reduce Mitt Romney’s tax rate to about 0% by getting rid of the taxes on capital gains. Ryan is very detailed and specific about this how to increase debt and income inequality. But when it comes to getting rid of debt, Ryan’s got nothing. Ryan is the Donald Rumsfeld of budgets.

Ryan promises a total of about $5 trillion in tax cuts for the richest Americans over the next decade (in addition to the Bush tax cuts). He says he will pay for this with……. well, he doesn’t actually say how he would pay for it. He says that his plan “eliminates nearly all existing tax deductions, exclusions, and other special provisions” to pay for itself. Really? Which ones? There are a lot of tax breaks that are very near and dear to voters in the country. But of course Ryan won’t say which ones he will eliminate. Its a long road to eliminating an astounding $5 trillion in tax breaks but Ryan won’t say how he plans to get there. Not even a hint.

The weirdest part of Ryan’s budget is his goal to cut spending. Ryan wants to cut spending by $5.3 trillion more than President Obama over the next decade. Only, whenever anyone tries to figure out what, exactly, Ryan is going to cut, Ryan becomes defensive and extremely ambiguous. You see, the trick in Ryan’s budget is that he never actually names programs that he wants to cut. Like with getting rid of tax breaks, Ryan has a broad goal for spending reduction, but few plans to get there.

Turns out, this technicality is a big advantage for Ryan. He can say the popular thing: “I’ll make massive cuts in spending” and whenever anyone asks: “Well wait, will you get rid of my favorite program?” Ryan can respond: “No! We’ll get rid of another program (but I’m not telling you what it is).”

As comical as this sounds, this is actually how Ryan is framing his budget “plans.” Recently, President Obama gave a speech outlining how Ryan’s plan would affect major federal programs saying,

“If this budget became law and the cuts were applied evenly … over 200,000 children would loose their chance to get an early education in the Head Start program,” Obama said. “There would be 45,000 fewer federal grants at the Department of Justice and the FBI” to combat violent crime.

Obama said hundreds of national parks would close.

Predictably, Republicans responded by saying “Where did Obama get these specifics? He imagined them.” Well, yea, what was he supposed to do when handed a plan that makes radical changes to America but contains no specifics? In fact Obama anticipated this come-back and said:

“Republicans may say, well ‘we’ll avoid some of these cuts,’” Obama said. “But they can only avoid some of these cuts if they cut even deeper in other areas.”

Which is exactly right. Eventually the hammer has to fall somewhere or not at all. And for every program you protect, another gets hit twice as hard. Either you’re cutting spending or you’re not. If you are, then real people are going to be hurt and if not, then then you’re not actually reducing the debt. If Paul Ryan is serious about his budget then he needs specifics. For an example of a serious budget with specifics, here’s a good starting point.

(For a overview of Obama’s a Ryan’s budgets, look here)

(Here’s more on Ryan’s spending cuts conundrum from Ezra Klein)

Comparing the budgets of Obama and Republicans

Recently, Congressional Republicans and President Obama released their budget proposals for this year and coming years, as Ezra Klein notes, “budgets are a moment when the two parties can’t hide,” where “we can see the decisions the parties make when they’re forced to choose between competing priorities and constituencies.” They are important documents, in other words. So without further ado, here is my summary of Obama’s and Congressional Republicans’ budgets:  (Obama’s is available here and Republicans’ is available here)

Obama’s Budget

Obama’s  budget is cautious but probably does enough to stabilize America’s debt through a mixture of tax hikes on the wealthy and some already agreed-to spending cuts. Mainly, Obama’s budget consists of three parts: 1) some increased spending on infrastructure and education 2) spending cuts to domestic spending and defense totaling $2.7 trillion 3) $1.6 trillion in new tax revenue from corporations and the wealthiest 2% of Americans.

First, the increased spending will go to areas where, by all accounts, the funds are sorely needed. The American Society of Engineers has given the US a grade of a “D” overall for the condition of its infrastructure, which once led the world. Obama has proposed spending billions more to upgrade the nation’s roads, bridges, railways, passenger rail systems and internet connections over the next six years. This money will put Americans to work building systems that will repay our investment many times over.

Second, Obama will cut spending, mostly by the amounts already agreed to in the as part of the debt ceiling negotiations with Republicans last year. This will cut defense spending, domestic discretionary spending (an umbrella term covering most federal programs), federal pensions and agricultural subsidies by $2.1 trillion. Medicare and Medicaid will also be trimmed for $360 billion, mostly through cuts agreed to in the debt ceiling negotiations and also by changing some tax treatments that will shift Medicaid costs to the states.

Third, Obama will end the Bush tax rate cut for the top 2% of earners, raising their top marginal rate to 39.5% from 35%. He will also implement the “Buffett rule” which states “that no household making more than $1 million a year pays less than 30 percent of their income in taxes.” These small changes are to make sure that the richest Americans pay their fair share for deficit troubles that their tax breaks caused. Obama also proposes a $61 billion “Financial Crisis Responsibility Fee” which would compensate taxpayers for their extraordinary support  of the financial industry in the 2008-2009 crisis. He will also plans to close some tax loopholes for the rich and corporations to make up a total of $1.5 trillion in new revenue (he names some specific ones).

Comparison of taxes and spending cuts in past deficit deals by Ezra Klein

Taken as a whole, Obama’s plan is very moderate. It is more conservative than most past bipartisan deficit deals. It also tries to spread the pain of deficit reduction somewhat evenly across all facets of society. Civil servants, the rich, the poor and the elderly all have their favored programs or tax breaks trimmed to make room for the deficit reduction that experts agree the US needs to undertake. His budget is far from perfect, but it would preserve the American social contract and social safety net, unlike Republicans plan.

Republicans’ Budget

Congressional Republicans’ budget (authored by Rep. Paul Ryan), is a very radical document. Ryan seeks to eliminate basically everything the US government does besides Medicare, defense and Social Security. He would also give out a massive $4.6 trillion tax cut, aimed at the richest Americans. Then, because their first two actions mostly balance out deficit-wise, Republicans would try to eliminate almost every tax break on the books to balance the budget. So let’s pull this apart:

First, Republicans will eliminate almost everything the federal government does except defense, Medicare and Social Security. The military is the only area of the budget that gets larger under Ryan’s plan, everything else goes under the ax. The cuts are painful and they start immediately. By 2050 there will be almost nothing left. Pell Grants-gone. National Parks-gone. Energy and health research-gone. Highway and transportation funding-gone. Homeland Security-gone. Food stamps-gone. Early childhood education- well, you get the picture. Over  the first decade this is how the cuts will fall:

The poor will bear of 2/3 of Republicans’ budget cuts in the first ten years, and more in the years to come. In fact, between 14 and 27 million people will lose Medicaid health coverage in the first ten years of this plan, as estimated by the Urban Institute.

Second, in a sharp contrast to his cuts to the poor, Ryan and the other Republicans plan to give out trillions of dollars to the rich in tax cuts. Ryan’s plan would drop Mitt Romney’s tax rate to near 0% (no wonder Mitt thinks this plan is “marvelous”) and would plaster the rich with money, even as it cuts trillions in spending from the poor. Take a look:

Ryan's tax cuts go overwhelmingly to the rich

So if you make a lot of money, you come out as a big winner in Paul Ryan’s plan. If you don’t make very much, then you are  in for a world of hurt if  this budget gets passed.

Third come the “mystery meat”  in Paul Ryan’s budget, as Paul Krugman says. See, Ryan has a problem because at this point in the budget process he has made the debt a lot worse by passing huge tax breaks and only made up for it with some big spending cuts. Now he has to try to cut the national debt.  So, Republicans propose that we get rid of almost every tax break in the book to pay down the debt. Only, they don’t tell us what breaks they want to cut. They leave those trillions in cuts up to our imagination. Seriously. To get the kind of deficit reduction he promises, Ryan would have to eliminate lots of tax breaks that benefit the poor and the middle class like the child tax credit, earned income tax credit, the tax free status of 401(k) and other retirement plans, the mortgage tax deduction, etc. That means that the last chart I posted will be completely different once Republicans are done.

Most low and middle income earners will probably end up paying more under Republicans’ plans than they do now because their tax breaks will be eliminated. But won’t tax breaks for the rich be eliminated as well? Nope. The biggest tax break for the rich (the lower tax bracket for capital gains) will actually be expanded. Rich people will no longer have to pay anything on their income from stocks, bonds and property, dropping Bill Gates’ Warren Buffett’s and Mitt Romney’s tax rates to about 0.

The only debt reduction in the Republican budget is the elimination of tax breaks and loopholes, which Republicans leave completely unspecified. The rest of the budget is not an attempt to come to grips with our debt, but an attempt to radically remake American government and society. Republicans would literally destroy the American social safety net in order to write huge checks to the millionaires in our country. The losers in Republicans’ budget are clear: anyone who is poor or middle income stands to lose all of their support from the government and see their taxes raised. The winners are the rich. They will see their taxes vastly reduced and all they will have to worry about are those Tiny Tims who come to their door asking for money around Christmas every year.

Yes, Obamacare will significantly reduce our Debt

Today, a former Bush administration official (Charles Blahous) made a big splash when he wrote a new “study” saying Obamacare will increase the United States’ debt by $340 billion over ten years. This is exactly the opposite of what every independent organization has found about the law. The CBO, Washington’s authoritative legislation scorer, says that Obamacare will reduce our debts by $100-200 billion (depending on what time period you use) over a decade. So who’s right?

Not the new guy. Charles Blahous came to his figure using a dishonest accounting trick that does not reflect the costs of the ACA at all. Basically, he assumed that Medicare spending would be cut drastically, starting in 2017. No one in all of America actually thinks (or ever thought) this would happen. Since Obamacare makes it explicit that Medicare funding will not be severely curtailed in 2017, Blahous says that Obamacare will increase the deficit.

His assertion is preposterous. Obamacare makes Medicare spend its money more efficiently, cutting its spending by about $500 billion over a decade. But in twisted Blahous’ logic, Medicare cuts actually increase the deficit! What? If he used this same logic against the Republicans’ budget (which he wouldn’t) he would also find that their budget significantly increases the debt. That’s because his method is a preposterous way to look at our debt.

For a less succinct, more technical account of how this works, read Jonathan Chait or Paul van de Water.

The United States has the worst health care system in the developed world

The title of this post is not hyperbole or an exaggeration. Judging by cost, access and quality of outcomes, the three metrics commonly used to evaluate a health care system, the United States does have the worst system in the developed world. On two of the three metrics (cost and access), the US is not even close to its competitors and the final one (outcomes) is a bit debatable but it still looks like the US is on bottom. (Let’s define “developed world” as the US, Canada, Europe and the highly developed Pacific Rim countries) I’ll knock out the easy metrics first.

Cost

Cost is where the US does the worst, and I mean the absolute worst compared to any other country. You’d think that since we aren’t even covering 18% of our population, our total health care costs would be less than most other countries, but as it turns out, our market-focused health care economy is remarkably inefficient and wasteful. Here is our per capita spending on health care:

From the Kaiser Family Foundation

The price the US pays for its strange private/public jumble of a health care system is that we spend twice what the Europeans spend for (less of) the same product. We almost spend three times what Japan and Italy do per capita. There is no question that the US has the most expensive health care system in the world by far. We spend huge sums of money on health care that could be going towards education, consumer spending, capital for new businesses or any other productive end. Instead, we waste a lot of money on health care for no apparent gain. Clearly, our approach to health care has failed on this front.

Now, the counter-argument to this is that we may spend a lot on health care, but at least we have choice in our health care market. At least the government doesn’t control our health care economy. But even if choice and limiting government intrusion into the marketplace are your goals, the US still fails miserably.

As for choice, how many Americans actually have a choice in their health insurer? Everyone over 65 doesn’t. They have Medicare. People that get health care through their job don’t have a choice. They get whatever their employer chooses for them. People with pre-existing conditions have no choice. They get no insurance unless they are lucky enough to qualify for a government plan. The poor have no choice. They are lucky if they qualify for Medicaid. The few people with a small say in their insurance provider are the handful of healthy (and somewhat wealthy) people under 65 whose employer does not provide them coverage. If that describes you then congratulations!  You get to choose from among a bunch of inexplicably complicated plans with astronomically high prices. And you better hope that your provider doesn’t find a loophole that will allow it to retroactively cancel your coverage once you get sick!

As for limiting government spending (the most important thing to many conservatives) the American system also surprisingly…. fails. Take a look:

US public sector spending exceeds or matches countries with universal coverage

Government health care plans control just as much of the US economy as they do everywhere else. That’s right. The US public sector spends just as much to cover the very old, *some* of the very poor and some veterans as most countries do to cover their entire population!

Our health care system is so inefficient that even our government spends more than most other countries’ governments. Amazing. The US could, for instance, completely adopt Canada’s health care system and actually see government spending drop as a result. If the US switched to a universal health care system, conceivably, we could reduce government spending as a proportion of the economy.

Access

The US is the only developed nation that does not guarantee its citizens access to health care. About 50 million Americans or one-sixth of the population lacks health insurance. A 2009 study found that there were 45,000 annual deaths in the US because of a lack of health insurance. That’s the equivalent of fifteen different 9/11 terror attacks every year. We expend countless billions to protect our citizens from terrorists. Why not do the same to battle a much larger killer?

Beyond the deaths (which are obviously extremely regrettable and preventable), the US suffers diminished economic productivity because American workers lack access to the care they need and must stay home from work or come to work sick. This is an economic cost that other countries do not have to bear because their citizens can always go to the doctor or buy drugs when they are ill.

Our labor market is also much less efficient than other countries’ market. Since most health insurance is given out through an employer in the US, workers may find themselves in a state of “job lock.” Job lock occurs when a worker wants to leave a job but cannot because he cannot get comparable health benefits anywhere else. For example, if an entrepreneur has a pre-existing health condition he cannot leave his menial job to start a new company because he will have no way to pay his health bills. The US health care system stifles innovation and creativity, and distorts the labor market.

 Quality

As far as quality goes, the US has a multi-tier system. The top tier, which only the most wealthy can afford, probably offers the best health care outcomes in the world. But we are looking at systems as a whole here and not just their effect on the top 1-5%. As a whole, our health care system delivers much worse outcomes than most other advanced systems.

For example, the US has a life expectancy of 78.3 years from birth. That’s good enough to put us in a tie with the communists living on Cuba. We’re ranked #36, which puts us behind the rich Pacific Rim nations and every European country that wasn’t formerly part of the Soviet bloc.  The US ranks similarly on measures of infant mortality. These deaths are immensely tragic, not the least because they are so preventable.

Recently, a study came out that ranked 19 developed nations according to how well they prevented the deaths of citizens with treatable conditions. “In establishing their rankings, the researchers considered deaths before age 75 from numerous causes, including heart disease, stroke, certain cancers, diabetes, certain bacterial infections and complications of common surgical procedures.” Predictably, the US ranked last. 19th out of 19.

There are differing opinions, of course. One of the most common responses is that the US system is better at treating disease once it has  been identified. Sometimes people claim that care  is “rationed” in other countries. One example put forward is that the US has higher survival rates for some types of cancer than many other countries. Many claim that this shows that treatments in the US are superior to those in other countries. It is very likely that this is not the case.

Uniquely, the US over-diagnoses certain types of cancer through excessive screenings. These screenings lead to an inflated number of diagnoses and the over-treatment of small abnormalities that would never develop into cancer if left alone. This problem has even led prominent doctors groups to recommend that their members cut back on the number of screenings and tests performed on populations who are not usually at-risk of developing cancer. Naturally, you are very likely to survive if you never actually had cancer in the first place, and that’s probably why the US ranks so highly.

As for other measures of care being “rationed,” it would seem to be the US that is doing the rationing. The US has fewer hospital beds per person than almost every other developed country. And despite our higher salaries, the US has fewer doctors per person than almost every other country. As a result, we get fewer annual doctor’s visits than most.

All in all, Americans pay much, much more for health care that is not available to the entire country and which produces no better results than in other developed nations. Clearly, this is a system in need of monumental reforms.

(Edit: Added some more information under “Quality”)

What do Mitt Romney’s low poll numbers mean?

Mitt Romney currently has a problem. No, not the Republican nomination, he has that locked up. He has a general election problem. Namely, people don’t seem to like him. Romney is currently sitting on a historically unprecedented unfavorability rating. Here is his standing in Pollster’s “poll of polls“:

Romney  is viewed unfavorably by almost half the electorate. In many polls, that number tops 50% and in no recent polls does it drop below 40%. His net fav/unfav rating is minus 9. That does not bode well for Mitt. He appears to be the most unpopular Presidential nominee since 1976. In contrast, President Obama’s fav/unfav rating is a *positive* 7.5%, according to RealClearPolitics, a right-leaning site.

Now, some of Romney’s weakness is due to lingering Gingrich and Santorum supporters having a bad  impression of Romney. Romney’s weakness among conservatives and Republicans will be gone by the fall, especially after he picks a conservative running mate. Obviously, these people will not back Obama over Romney. But crucially, Romney is running very poorly among groups he cannot count on to come around by November.

In a recent ABC News-Washington Post pollRomney’s fav/unfav rating among the electorally crucial bloc of independent voters is 35-52 (that’s a negative rating of minus 17!)  and among moderates its a similar 35-48. That this many independents have already made up their minds (negatively) about Romney is a very bad sign for the Republicans. You can’t win the Presidency if this many independents view you unfavorably. Its just not possible.

Of course, the most relevant poll numbers  right now are President Obama’s job approval ratings. Unlike favorability ratings, which measure how well voters  like you as a person, job approval ratings show how much they approve of your time in office. (Obviously, Mitt Romney doesn’t have approval ratings because his job for the past 5 years has been running for President.) People will tend to focus on the President more than his challenger when they think about who to vote for.

The President’s approval rating is currently 48% approve to 46.5%  disapproving (positive 1.5%). This number will tend to harden as we get closer to the election. It’s not strong enough to guarantee re-election, but its also not weak enough to put him in a real danger zone. There remains a significant bloc of people who remain undecided about the President and who will consider him against his challenger in November. For these people, personal feelings about the candidates are crucial. If they are undecided about the President’s performance, but know that they like him personally and dislike his opponent, then they will swing toward the President in the election.

Romney’s numbers will rebound through the summer as he gains Republican supporters, so conservatives should not worry too  much about his overall favorability numbers right now. What they should worry about are  Romney’s numbers among independents. These numbers are bad and could sink him in November.

The legal case against Obamacare is ridiculous

As far as I can tell, the legal case against the Affordable Care Act (Obamacare) is based on a string of technicalities, half-truths and strange distinctions. Very little of it appears to be based in reality or on previous case law, for that matter. Bear with me as I lay out just how crazy it would be to strike down this law. Here are the charges Republicans have brought against health care reform:

  • They argue that the individual mandate is not a tax, (as it certainly appears to be) but some form of legal coercion distinct from Congress’ taxation powers.
  • Building off that, they argue that Congress does not have the power to coerce people into buying health insurace. Congress, they claim, only has the power to regulate economic activity, not economic inactivity. They say that the decision not to buy health insurance is an example of economic inactivity.
  • Finally, they argue that there is no “limiting principle” behind Congress’ use of the “Commerce clause”  to enact the individual mandate. In other words, if Congress can force you to buy health insurance, they can make you do anything  and that is against the principle of a limited government.

All of these claims are bogus to some degree or another. Here’s why:

Wait, the individual mandate isn’t a tax?

The individual mandate is the common name for the part of the ACA that is meant to pressure the uninsured into buying insurance. It is a tax penalty equal to $695 or 2.5% of your income, whichever is greater. If you have enough money but still choose not to buy health insurance (starting in 2014), then this penalty will be added to your tax return and will be collected by the IRS.

For the life of me, I can’t figure out why this isn’t a tax. The mandate’s challengers allege that it would have been Constitutional if Congress had raised everyone’s taxes by $695 and then given a rebate to every person that gets health insurance. Then, only people without health insurance have to pay the extra tax. But that’s just a more roundabout way of doing  exactly what the individual mandate does! As even this blogger from The American Conservative agrees, the mandate clearly is a tax. But at the Supreme Court we heard this exchange:

JUSTICE SOTOMAYOR: Here we have one where the Congress is not denominating it as a tax; it’s denominating it as a penalty.

MR. LONG: That’s — that’s absolutely right, and that’s obviously why, if it were called a tax, there would be absolutely no question that the Anti-Injunction Act applies.

Ah, so the problem is that Congress didn’t specifically call the mandate a “tax,” they called it a “penalty.” Well, that’s an open-and-shut case. Courts obviously can’t be expected to use their own powers of deduction and logic to conclude that something is a tax, when its not explicitly called that…… O wait, they do that kind of thing all the time. AND there’s even a Supreme Court decision saying:

In a 1941 decision on “the constitutionality of a tax law,” the Supreme Court ruled that it was “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.”

If it walks like a tax, talks like a tax and acts like a tax, then it IS a tax and the Supreme Court is allowed to say so. Except when it doesn’t want to for some reason.

“Economic inactivity”- I wonder if this is a well-founded legal doctrine?

If the mandate isn’t a tax, then it has to be justified under Congress’ powers outlined in the Commerce clause of the Constitution, which reads:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States…

As established by the Supreme Court in Wicker v Filburn, Congress even has the power to regulate private economic activities which are never intended to cross state lines or to enter into the open market, as long as it is part of a broad national regulatory scheme. But the law’s opponents claim that this is something different. Conservative scholars claim that instead of Congress regulating someone’s actions, here it is regulating their inaction.

The court has never upheld a federal law that punishes Americans for exercising their God-given right to do absolutely nothing. Even the furthest reaches of the Commerce Clause have extended only to affirmative actions, such as growing wheat or possessing illegal drugs.

Of course, the Supreme Court has never held that there is a difference between “economic activity” and “economic  inactivity.” After all, what would be the point of regulating someone who was economically inactive? There would be no point, and that’s not what the individual mandate does. It regulates how people will pay for the medical care that they will eventually receive. Everyone, by virtue of their mortality, eventually will be active in the health care market. No one can predict when a disease will strike or how much it will cost. That’s why everyone needs insurance. Care isn’t free, everyone will need it, and if you aren’t paying for your own care, the rest of us are.  The individual mandate was put into place to say: either pay for your own care (buy insurance) or pay us a penalty to cover your care for you.

The opponents of health care reform have conceded that Congress could force people to buy insurance at the moment they enter the doctor’s office, hospital or ambulance with a severe disease. But of course, that’s not how insurance works. Can you buy life insurance on your death bed? Can you buy car insurance after you’ve already gotten in a wreck? Of course not. If Congress can require insurance when it would do no good, then they can require it when it would do some good. No one is immune from having an accident and being rushed to the hospital at any moment. No one is “economically inactive” in the health care market.

Limiting Principles for Some. Guaranteed health care for none!

So now that the Supreme Court has established that the mandate isn’t a tax (wink, wink) and that there are all these people in America who want nothing more than to be free from the burdens of life-saving medicine, we arrive at our last problem with health care reform: if the Court let’s Congress do this, they can get away with anything! Jonathan Chait tackles that problem here:

If Congress can force you to purchase health insurance, why can’t it make you buy broccoli, or anything at all? (And since this would be bad, then obviously Congress can’t be allowed to make you buy health insurance.)

There are many possible ways to solve this objection, if a Justice were so inclined to look for them. Health insurance is inherently different from almost any other product, with inherent problems of cost-shifting and adverse selection. (The economics of this seem to be utterly eluding the conservative justices.)

In other words, your decision to not eat broccoli doesn’t directly financially burden anyone else, but your decision not to buy health insurance does. A broccoli mandate would not be necessary or proper to solving a major national problem, the individual mandate is. But as Chait goes on to point out, there aren’t “limiting principles” in a lot of Congress’ powers:

As Akil Amar notes, if Congress can tax income it could tax income at 100% percent. If you can conscript 18-year-olds into the army, you can conscript them for 25-year terms like the Czars did. You could put them into the Army Corps of Engineers and turn them into a vast pool of government slave labor. But such hypothetical possibilities don’t normally dominate jurisprudence the way they have at the Court this week.

There are not well-defined limits on a lot of  things Congress and the President are allowed to do, and for good reason. Sometimes problems or needs arise and people expect their government to be able to solve them in new ways. How about we worry about the validity of broccoli or gym membership mandates when Congress actually passes something that stupid. And besides that fact, defenders of the law, like President Reagan’s former Solicitor General, can offer limiting principles for this power.

Conclusion

So there you have it. There is an unusually weak case against Obamacare which the Supreme court is taking unusually seriously. The fact that this law could get thrown out shows us the utter ridiculousness in this case:

  • No one argues that it would be unconstitutional for Congress to impose a single-payer, government-run health care plan on America. But a moderate plan that preserves the free market while making badly needed reforms in a broken system? That’s a bridge too far.
  • This case would be over if instead of the word “penalty” in the law, it read “tax.”
  • The Supreme Court is actually considering striking down a 2,000 page law with hundreds of mostly unrelated, moving parts becauseone of those parts may be constitutionally defective.
  • The Supreme Court is putting the right of a few million people to burden the rest of society with their health care bills ahead of the right of Congress to make laws and the right of 40 million people to the medical care Congress has given them.

If the most conservative Court in decades strikes down this law it will be for of political, not legal reasons.