Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 24, 2010

Health Care Reform (2): Yes, Virginia, This Really is the Gateway to a Government Take-over of Health Care

[This is the second post in a series.  The first post is here.]

Among other defenses of the health care legislation and responses to supposed exaggerations by its opponents, President Obama and the Democratic leadership in Congress insist that the now-enacted plan is not radical, not “socialistic,” not the introduction to a new era of big government.  They emphasize that the bill not only does not create a single-payer government system for all, but that the final version does not even include the controversial public option of a government-created insurance company to compete with private health insurers.

On closer examination of the Patient Protection and Affordable Care Act of 2010, however, President Obama and the Democratic leadership have greatly expanded the size and power of the government, turned aside alternatives measures that would have harnessed the private sector and limited government, and implemented a heavy-handed and bureaucratic regulatory regime that pushes the country well down the slippery slope toward that all-government plan.

Consider four prominent elements of the 2010 health care legislation that take a major step in the direction of a government take-over of more than 17 percent of our national economy:

Government Coverage of the Uninsured:  Of the 32 million more Americans to be covered under this legislation, the assumption is that well more than half of them (which is probably a gross under-estimate) will be folded into the already out-of-control Medicaid program.  Now Medicaid (a financial partnership between the federal government and the states) is a government-run health program, no ifs, and, or buts about it.  Thus, deliberate expansion of Medicaid rather than greater use of market incentives and tax cuts unavoidably counts as a “big government” initiative.

Government Mandate of Individual Purchase of Insurance:  The Democratic health insurance legislation requires every adult American to purchase health insurance, starting in 2014, whether he or she wants to or not.  In and of itself, this government command is a heavy-handed intrusion of government into our private lives.  Not incidentally, this part of the law is to be enforced by the hiring of tens of thousands more Internal Revenue Service agents.  I don’t want to overstate the coercive nature of the individual mandate provision, because I’ll describe tomorrow how soft and vulnerable it is which thus makes it highly unlikely to achieve the economic benefits assumed by the bill drafters.  Nonetheless, the growth in government employment accompanying this measure is manifestly a boost in the size of the federal government.

Government Regulation of Employers:  By 2014, every employer with more than 50 employees must offer health insurance or pay penalties.  Rather than looking for a private market mechanism, combined with tax credits and incentives, to free health care provision from a connection with employment and give all us portable coverage, President Obama and the Democratic leadership preferred to impose the burden through greater mandates on and regulation of private employers.  Even aside from the likely slow down in hiring as employers worry about the costs of providing health care coverage (even with partial tax credits to certain employer), this provision also requires new troops of government employees to monitor employer’s provision of health care, evaluate whether the coverage meets guidelines, and mete out penalties.

Government Regulation of Insurance:  While public attention primarily has been drawn to those provisions that regulate health insurance providers by requiring coverage of preexisting conditions or allowing adult children to remain on parents’ coverage until age 26, the legislation imposes a far more pervasive regulatory scheme than is generally realized.  Under the health care legislation, health insurance providers that participate in the planned “exchanges” as a one-stop shopping center for consumers will be required to satisfy certain federal law standards for platinum, gold, silver, and bronze packages, thus greatly restricting the diversity of coverage options now available to consumers and likely increasing premiums as well.  Here too, greater government oversight means more federal government operations.

This regulatory scheme will foster the growth of government in two ways, one immediate and the other likely in the future:  First, as noted, regulation requires regulators, which again means hiring more federal government employees.

Second, because of the increase in expensive requirements for health insurance coverage in health care, as in the rest of economic life, there is no such thing as a free lunch and the failure of the bill to include meaningful health care cost containment measures, private insurance carriers may be pushed to the breaking point.  While President Obama and the Democratic leadership demonized the insurance companies for cynical political gain during this debate, the reality is that most health insurance companies realize a profit margin under five percent (here and here).  That’s not an unhealthy margin (I know, it’s a pun), but neither is it a margin that can sustain major additional burdens without a reversal.

Especially if the mandate for every individual to buy insurance and thus expand the insurance pool proves inadequate (a point I’ll address tomorrow), the 2010 health insurance coverage may force private health insurance companies out of business or necessitate that they hike premiums.  The public reaction may be to call for a government-run plan as a more palatable alternative.  And I don’t believe for a moment that the negative incentives of the legislation that would prompt a future push toward a government system went unnoticed by President Obama and the Democratic leadership in crafting this particular legislation.

My opposition to the unwarranted emphasis on big government solutions in the 2010 health care legislation goes beyond prudential concerns about efficiency and cost to the public, although those factors obviously are important and contribute to the lack of economic viability for the plan (as I’ll discuss tomorrow).  As a matter of principle, grounded in Catholic teaching about liberty, human dignity, and human thriving, I regard this plan as dangerously fostering dependency on government, as suppressing our liberties in making economic and health care choices independent of government guidelines, and as enhancing the power of government employee unions that convert government itself into a special interest contrary to the common good.

Those who dismiss complaints about a loss of liberty through a new government initiative often assume such objections are nothing more than the tired repetition of the old Barry Goldwater aphorism:  “The Government that big enough to give you everything you want is also big enough to take it all away.”  While one ought be cautious before assuming that expansion of government power never creates risks of tyranny, my fears are more pragmatic and cultural in nature.  Rather than a reign of terror by a totalitarian regime enforced by secret police, I fear instead that our economic prosperity and individual liberty may be smothered under a suffocating blanket of law, regulation, and bureaucratic oversight.

Nonetheless, the objection still might be raised to my complaints, whatever the health care legislation may mean with respect to the growth of government and bureaucracy, it simply did not impose a national government-run health system or public option insurance plan.  But that this health care legislation could have been even worse is not a point in its favor.

A disabling blow to the body may not always be exhibited by a gaping wound and a hemorrhagic rush of blood.  When I worry about the injury to the body politic posed by the health care bill expansion of government, I am reminded of Mercutio’s dying words in Shakespeare’s Romeo and Juliet:  “No, ‘tis not so deep as a well, nor so wide as a church-door; but ‘tis enough,’twill serve.”

[Tomorrow:  Fantasies about government spending, revenues, and economic forecasts]

Greg Sisk  

   


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"As a matter of principle, grounded in Catholic teaching about liberty, human dignity, and human thriving, I regard this plan as dangerously fostering dependency on government, as suppressing our liberties in making economic and health care choices independent of government guidelines, and as enhancing the power of government employee unions that convert government itself into a special interest contrary to the common good.

Those who dismiss complaints about a loss of liberty through a new government initiative often assume such objections are nothing more than the tired repetition of the old Barry Goldwater aphorism: “The Government that big enough to give you everything you want is also big enough to take it all away.” While one ought be cautious before assuming that expansion of government power never creates risks of tyranny, my fears are more pragmatic and cultural in nature. Rather than a reign of terror by a totalitarian regime enforced by secret police, I fear instead that our economic prosperity and individual liberty may be smothered under a suffocating blanket of law, regulation, and bureaucratic oversight."

It seems like these arguments could be applied to other government areas which (I assume) you would support. For example, government provision of police and prosecutorial services. I realize that analogies like these are often weak, because of course health care and crime prevention aren't the same thing. However, I would ask you this: assuming that you don't support a private, market based criminal justice system, under which of the categories above would you differentiate the two? That should help narrow the debate to the truly central points.

Posted by: Andrew MacKie-Mason | Mar 25, 2010 12:21:15 PM

Andrew makes a solid point. You're right both that the concerns I raised apply to the criminal context as well as the social welfare context and that I don't think we should privatize criminal justice. As I've argued subsequently in my other post, sometimes we must rely on government, but that we should do so only when necessary and adopt a presumption against government as the solution to problems. Even when government is the right tool for the job -- as in policing against and prosecuting crimes -- we should recognize the great risk of suppression of human dignity and liberty by overbearing policing and prosecution. That should cause us to think carefully about when we want to use the criminal law, what activities should be addressed by criminal sanctions as opposed to other means, how much discretion we wish to allow the police and prosecutors, what safeguards should be in place, what alternatives are available to formal prosecution and sentencing by way of diversion means, how should we sentence, etc.

Posted by: Greg Sisk | Mar 25, 2010 1:14:39 PM

What differences do you see between the health care and police contexts, then? It seems like you're focusing on the general negatives of government intereference and ignoring the possible benefits and why they apply in some contexts but not to health care.

I'll hopefully have time for a more substantive response later.

Posted by: Andrew MacKie-Mason | Mar 25, 2010 1:34:56 PM