Health Care: Not Close to Over
The fat lady hasn’t even started to warm up yet.
The narrow 220-215 victory in the House on Saturday night was a step forward on the road to a government takeover of the health care system. But as close and dramatic as that vote was, that was the easy part. The Senate must still pass its version of reform—which will not be the bill that just passed the House. Nancy Pelosi was, after all, able to lose the votes of 39 moderate Democrats. Harry Reid cannot afford to lose even one. A conference committee must reconcile the two vastly different versions. And then, Pelosi must hold together her 3 vote margin of victory (if it gets that far). Yet several House Democrats who voted for the bill on Saturday said they did so only to “advance the process.” Their vote is far from guaranteed on final passage. And, House liberals are almost certain to be disappointed by the more moderate bill that may emerge from the conference.
Among the more contentious issues:
Individual Mandate: This should’ve been low-hanging fruit. Democrats agreed on a mandate early in the process. But it became increasingly plain that a mandate would hit those with insurance as well as the uninsured — forcing people who are happy with their plan to switch to a different, possibly more expensive plan. With this mandate now being seen as a middle-class tax hike, qualms have developed. The House bill contains a strict mandate, with penalties of 2.5 percent of income backed up by up to five years in jail. The Senate Finance Committee, on the other hand, watered down the mandate’s penalties and delayed the mandates implementation.
Employer Mandate: The House bill also contains an employer mandate, a requirement that all but the smallest employers provide insurance to their workers or pay a penalty tax of up to 8 percent of payroll. The Senate, looking at unemployment rates over 10 percent, seems unlikely to include an employer mandate.
The Public Option: The House included, if not a “robust” public option, at least a semi-robust one. But moderate Democrats in the Senate are clearly not on board. Joe Lieberman (I-CT) says that he will join a Republican filibuster if the public option is included. Harry Reid is trying various permutations: a trigger, an opt-in, an opt-out. But as of now there is not 60 votes for any variation.
The Sheer Cost: Fiscal hawks like Sen. Evan Bayh (D-IN) say they will not support a bill that adds to the deficit or spends too much. But the house bill cost a minimum of $1.2 trillion.
Taxes: The House plan to add a surtax on incomes of $500,000 or more a year has no support in the Senate. At the same time, the Senate plan to slap a 40 percent excise tax on “Cadillac” insurance plans is unacceptable to key Democratic constituencies like labor unions.
Abortion: Conservative Democrats insisted on a strict prohibition on the use of government funds for abortion. The bill could not have passed without the inclusion of that provision. House liberal swallowed hard and voted for the bill, despite what they called “a poison pill” anyway with the expectation that it will be removed later. If the final bill includes the prohibition at least a couple liberals could defect. If it doesn’t, conservative Democrats won’t be on board.
Immigration: The Senate Finance Committee included a provision barring illegal immigrants from purchasing insurance through the government-run Exchange. The House Hispanic Caucus says that if that provision is in the final bill, they will vote against it.
As if these disagreements among Democrats wasn’t bad enough, public opinion is now turning against the bill.
President Obama has called for a bill to be on his desk before Christmas—the latest in a series of deadline that are so far unmet. It is hard to see how Congress can meet this one either. The Senate has not yet received CBO scoring of its bill and is not prepared to even begin debate until next week at the earliest. That debate will last 3-4 weeks minimum, assuming there are 60 votes for cloture. That means, the bill cant’ go to conference committee until mid-December, even if everything breaks the way Harry Reid wants. Privately, Democrats are now suggesting late January, before the State of the Union address, is the best they can do.
The fat lady can go back to sleep—this isn’t over yet.
“Keep Your Subsidies off My Ovaries”
In my recent Cato paper, “All the President’s Mandates: Compulsory Health Insurance Is a Government Takeover,” I explain that if Congress compels Americans to purchase health insurance, it would “inevitably and unnecessarily open a new front in the abortion debate, one where either side—and possibly both sides—could lose.”
Slate’s William Saletan explains how the pro-choice side could lose:
This week, the Senate finance committee is considering amendments that would bar coverage of abortions under federally subsidized health insurance. Pro-choice groups are up in arms. After all, says NARAL Pro-Choice America, “In the current insurance marketplace, private plans can choose whether to cover abortion care—and most do.” If Congress enacts subsidies that exclude abortion, “women could lose coverage for abortion care, even if their private health-insurance plan already covers it!“…
The argument these groups make is perfectly logical: If you standardize health insurance through federal subsidies and coverage requirements, people might lose benefits they used to enjoy in the private sector. But that’s more than an argument against excluding abortion. It’s an argument against health care reform altogether.
Saletan also explains why pro-life and pro-choice positions on Obama’s health plan are irreconcilable:
To get what they consider neutrality, pro-choicers have to make pro-lifers pay indirectly for abortions. And to keep what they consider clean hands, pro-lifers have to make abortion coverage federally unsupportable and therefore, in a subsidy-dependent system, commercially nonviable.
Rather than an argument against all health care reform, I’d say this is an argument against reforms that expand government subsidies or otherwise give government the power to choose what kind of insurance you purchase. Fortunately, there are better ways to reform health care.
Filed under: Cato Publications; General; Health, Welfare & Entitlements
Lack of Deep Thinking = Belief in the Living Constitution?
In a twist on the “lack of deep thinking” idea, part of what might be going on in Sotomayor’s head—why she keeps answering questions about judicial philosophy with reference to precedent rather than constitutional first principles is because she’s not an originalist. How can we hope for her to tell us her understanding of the meaning of the constitutional text, after all, if that text’s meaning changes with the times?
For example, Stuart Smalley Al Franken asked Sotomayor point blank, “do you believe the right to privacy includes the right to have an abortion?” The nominee began here response with: “The Court has said….” That is, it is not the Constitution—whatever your view of it may be, whether you think it contains a right to abortion or not—that is the supreme law of the land, but what nine black-robed philosopher-kings say. Of course, if your (non-)theory of constitutional interpretation is to keep “improving” the document—and to keep one step ahead of public opinion, so judges can effect social “progress”—then it’s irrelevant what the Constitution said before the Supreme Court put its gloss on it.
And if you subscribe to this “living Constitution” or “active liberty” theory, then naturally the life experiences of a “wise Latina,” along with lessons from foreign and international law—which, Sotomayor said as recently as her April speech to ACLU, get a judge’s “creative juices flowing”—are all valid parts of your jurisprudential toolkit.
CP Townhall
Sotomayor Displays a Lack of Deep Thinking
It strikes me that Sotomayor has been fairly forthright in her responses to questioning, not hiding too much behind the tired cliché that she can’t answer a question because it could lead to prejudging a case—certainly far less than Ruth Bader Ginsburg and even John Roberts. Still, on several important issues, such as property rights, national security law, abortion, and even her overall judicial philosophy, she has appeared disingenuous in saying that she has no firm views on the subject—hiding behind precedent again and again as if first principles didn’t exist. In other words, she says a lot—displaying a broad knowledge of cases and legal doctrine—without answering larger questions. She answers questions about what the law should be with what the law is, questions about what the Constitution says with what the Supreme Court has said about the Constitution.
This would be barely appropriate for a nominee to a lower court, who is, of course, bound by precedent. But senators rightly want to know a Supreme Court nominee’s preferred legal theories, what her view of the Constitution is unencumbered by others’ attempts to interpret that document.
The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence. It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive. For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that.
That is, Sonia Sotomayor is not a Cass Sunstein or Larry Tribe or Elana Kagan or (fellow circuit judge) Diane Wood. She is not a scholar or an ideologue. Her liberality is reflexive and warmed-over, a product of the post-modern educational environment that formed her in the 1970s—complete with ethnic activism—but not an intellectual edifice. This does not mean she isn’t a danger to liberty and the rule of law, or that her votes and opinions won’t harm the Constitution. But it does indicate that, for all her bluster about being a “wise Latina,” she is little more than a left-leaning empty robe.
CP Townhall
Denying ‘Terrorists’ the Label
The killing of abortion docter George Tiller is an interesting microcosm of how terrorism works — and how it can be suppressed. I wrote here the other day denying that Tiller’s killer is a terrorist. Refusing to call him a terrorist will deny him strategic gains and reduce violence in the future.
Now the AP reports the killer’s claim from jail that similar violence is planned across the nation. This kind of statement is not likely prediction, but rather an appeal to like-minded people to join him. Like terrorists, he has a strong ideological commitment but almost no way to advance his cause other than by inducing missteps on the part of his opponents.
Letting Dr. Tiller’s killer wear the mantle of terrorism would enthuse people who might be inclined to join his cause and carry out future attacks on abortion providers. The best strategic response is to downplay his claims, refuse to call him a terrorist, and let the criminal process run its course.
Is Dr. Tiller’s Killer a Terrorist?
I’ve been intrigued to watch the foment about whether the man who killed Dr. Tiller is a terrorist.
At the ThinkProgress Wonk Room, Matt Duss says, emphatically, “Yes, Dr. Tiller’s Murderer is a Terrorist.” LifeNews.com, a nominal representative of the other “side,” is equally eager to report that abortion activists are calling pro-life advocates “terrorists.”
Mostly, it appears, the Tiller/terrorist question is emotional energy-drink for both sides of the abortion debate. We should let these ideologues be ideologues and move on. But it is worth thinking about the issue in terms of terrorism broadly and in terms of reducing violence prospectively.
Here’s an interesting statement of Duss’ about the killing: “It’s [sic] goal was to intimidate women against exercising their right to choose abortion, and to intimidate doctors who perform them.” Perhaps Duss has had an opportunity to interview Tiller’s killer, who has been highly forthcoming, but more likely Duss is imputing motives to the killer that fit his own worldview and that start an argument he wants to have.
Knowing nothing about the killer, I think it’s a possibility that he might have wanted to avenge what he sees as wrongful deaths that the doctor has brought about, with no contemplation of the prospective effect on women or doctors. The killer might have been trying to impress someone he knows who hated Dr. Tiller. Perhaps he suspected Dr. Tiller was sleeping with his wife (very unlikely, but possible). I don’t think that Duss is wrong, but ascribing motivations to people based on the results they cause is a fascinating habit. To match the hugely shocking results of the 9/11 attacks, President Bush supplied huge reasons that terrorists do what they do, and a deeply unproductive “war on terror” was on.
Now, if the goal is to reduce violence, calling Dr. Tiller’s killer a “terrorist” seems distinctly unhelpful. The criminal laws against homicide contain every penalty that the killer deserves, and he should get justice as the criminal law prescribes it. There is no criminal offense called “terrorism” – and there shouldn’t be, for reasons that follow.
The question in play with Tiller/terrorism goes to future violence – the actions of others. If Tiller’s killer has allies – direct allies or people who agree with what they think he was doing – calling him a “terrorist” will tend to exalt his actions to them. They will perceive it less as an ugly murder and more as political violence done for a cause – something righteous.
If Tiller’s killer were to become widely viewed as a “terrorist,” this would deepen the resolve of his “allies” because they would come to regard the political structure as arrayed against them and their cause. Tiller’s killer would look heroic to them, and his example is one they might seek to emulate in their ideological struggle.
The better approach is to methodically and calmly apply the criminal law to the killing – without rhetorical excess. Putting aside the “political” content will let the ugliness and sadness of the murder carry the day in terms of public attention. This will signal to abortion opponents who might be susceptible to “radicalization” that violence is something sad and pathetic people do. The criminal law accords criminals the justice they are due, families grieve, and the society moves on.
These messages will drain power from the idea of using violence to advance political aims. The best way to talk about the killing of Dr. Tiller is to deal with it only as a grisly and pathetic murder – if the goal is to protect doctors who perform abortion from future violence.
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