ObamaCare and the Court, Day 2

Our favorite justice, Alito, emphasized our argument:

JUSTICE ALITO: ...here the reason why there is cost shifting is because the government has mandated that. It has required hospitals to provide emergency treatment, and instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

MR. CLEMENT: Justice Alito, that is exactly the government's argument. It's an extraordinarily illogical argument.

Tangentially, the Chief Justice employed his characteristic style of argument: frame the liberal premise -- in this case that the Lochner era was an "unhappy period" to which we would never, ever wish to return -- as arguing the conservative conclusion.

CHIEF JUSTICE ROBERTS: Well, now why is that? Congress could — once you — once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be — it would be going back to Lochner if we were put in the position of saying no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power.

Both Kennedy and Kagan wondered out loud "whether the determined efforts of Congress not to refer to this as a tax make a difference." But not Breyer, despite advocating "enforced by the legislature" as a "limiting principle." Breyer and Sotomayor, more or less, seemed to advance their view of commerce clause power without practical limit.

Ginsberg had, one of the stronger arguments of the day -- "There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to get — to preserve private insurers, it can't do that" -- and one of the weakest, arguing that insurance "works" by forcing one group of people to subsidize another.

On the whole, Roberts seemed sympathetic to the government's argument that "almost everybody is going to enter the health care market" with the caveat that "you cannot say that everybody is going to need substance [ab]use treatment... and yet that is part of what you require them to purchase." While Kennedy seemed to waffle (or wobble?), a decision which upheld the mandate only narrowly for catastrophic care, might be the impractical kind of equanimity Kennedy in winter seems to like best.

ObamaCare and the Court

There are three basic arguments in support of Obamacare's constitutionality.

The first, and perhaps most honest, is political: The administration will ensure there are grave political consequences should Obamacare be overturned. To this end, influential surrogates argue that any legal opposition to Obamacare is partisan and illegitimate.

The second is both most common and, to my ears, incoherent. The argument is congress has a right to impose the individual mandate because "The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually." These costs, of course, are economic activity entirely created by government rules requiring hospitals treat people who cant pay. By way of analogy: Do liberals really believe that the government can pass a law requiring all restaurants feed anyone who comes in regardless of ability to pay, and then -- because restaurants would otherwise all go out of business -- mandate that everyone eat out once a week or pay a penalty?

The most compelling argument is, for lack of a better term, "realist": The conservative argument "liberty is at stake," is undermined by the recognition that congress could have accomplished the same policy through constitutionally permissible, if politically impossible, means. The weakness of that argument is, simply, it frames a vote against Obamacare as a vote for the rule of law. Further, if the liberal view is that liberty is best protected by voters rather than courts, then the courts ought be hostile towards laws that would be politically impossible pass properly.

One gets the sense that Roberts (and, for different reasons, Kennedy) is very sensitive to political pressure, and -- given the reasonable chance elections will wash this issue away -- would be very eager to punt. A punt -- hampering the economy with continued uncertainly -- would also be most damaging politically to Obama. On the other hand, should Kennedy wish to honor his lifelong federalism, he will likely be on much safer political ground in overturning, now, the medicaid expansion.

Faith and Courage

David Brooks argues that though "we’ve become accustomed to the faith-driven athlete", being a "religious person in professional sports" is an "anomaly" and "problematic." This is because "the moral ethos of sport is in tension with the moral ethos of faith... The sports hero is assertive, proud and intimidating... his primary virtue is courage." On the other hand "the religious ethos is about redemption... humility is the primary virtue... you achieve your identity through self-effacement.... you lead most boldly when you consider yourself an instrument of a larger cause". Brooks concludes that "the two moral universes are not reconcilable."

This is entirely foolish. While Brooks may be narrowly correct that there is some abstract intellectual tension, the fact that faith-driven athletes are commonplace is evidence that the values of faith resonate rather than conflict with their professional lives. This is no great puzzle. In Brooks' description, religious values are very aligned with the crucial values of teamwork. It should be obvious that it is no coincidence that religiosity appears more prevalent within the world of team sports. More fundamentally, how does Brooks fail to understand the degree to which courage can be ground in faith?

In the end, it is hardly surprising that a man enamored as Brooks is with paternalistic social science would indulge conceptual castles over the testified experience of others.

Brooks and Krugman II

While this blog is often critical of David Brooks, it can give credit where due. What is not to love about his deserved, if petulant, absolute smack-down of colleague Krugman?

Over the past two weeks, Charles Murray’s book, “Coming Apart,” has restarted the social disruption debate. But, judging by the firestorm, you would have no idea that the sociological and psychological research of the past 25 years even existed... his left-wing critics in the blogosphere have reverted to crude 1970s economic determinism...

Liberal economists haven’t silenced conservatives, but they have completely eclipsed liberal sociologists and liberal psychologists. Even noneconomist commentators reduce the rich texture of how disadvantage is actually lived to a crude materialism that has little to do with reality.

This economic determinism would be bad enough if it was just making public debate dumber. But the amputation of sociologic, psychological and cognitive considerations makes good policy impossible.

The American social fabric is now so depleted that even if manufacturing jobs miraculously came back we still would not be producing enough stable, skilled workers to fill them. It’s not enough just to have economic growth policies. The country also needs to rebuild orderly communities...

Social repair requires sociological thinking. The depressing lesson of the last few weeks is that the public debate is dominated by people who stopped thinking in 1975.

(We Take Care of) (Our Own)

Springsteen's music, for good reason, is often associated with progressive politics. However, it plainly resonates with conservatives as well, for equally good reason: The values of Springsteen's protagonists are frequently conservative values -- faith, community, courage and work.

Along these lines, was the famous faux-controversy, when Reagan was criticized for saying "America's future rests in... the message of hope in the songs of... Bruce Springsteen." -- however Springsteen may have intended the message of "Born in the U.S.A." (and the most likely intention was simply "to sell") -- Reagan did not mis-characterize the message (most of) its mass-audience heard.

Bruce's latest release, performed last night at the Grammy's, and seemingly written for the Obama 2012 campaign is an open attempt to bridge these poles. The song argues for progressive social policy ("We take care of...") on the basis of conservative, nationalistic, values ("...our own; Wherever this flag's flown...").

While this is, perhaps, savvy messaging, it has to be said that the combination of Nationalism and Socialism is, at the very least, in-artful and unfortunate.

Brooks and Krugman

David Brooks hypes Coming Apart. He describes it as arguing "the country has bifurcated into different social tribes... the educated upper tribe (20 percent of the country) and the lower tribe (30 percent of the country)... the lower tribe are much less likely to get married, less likely to go to church, less likely to be active in their communities, more likely to watch TV excessively, more likely to be obese." They are also much less likely to work. He claims that this disproves the arguments of both parties "in which the problems of the masses are caused by the elites" (Wall Street/Media). He argues that this calls for "a National Service Program."

Krugman, of course, argues that causality is reversed: "young men, confronting the reality that they won’t earn anything near as much in real terms as their fathers did... don’t marry and raise families the way the previous generation did"

Krugman's argument is stunningly besides the point. It should go without saying both that the more financial comfort one has the easier it is to uphold personal, family and communal responsibilities and that the more people uphold personal, family and communal responsibilities the better off economically they are likely to be. If the reality of an increasingly competitive world in which the US controls a shrinking share of the global economy, (amongst other factors) is a toughening economic outlook for under-skilled labor, then it is more important now than ever for people to uphold personal, family and communal responsibilities.

Brooks' argument is stunningly blind. It may well be that the "20 percent" "live more conservative, traditionalist lives than the cultural masses", but the 1 percent that dominate the media clearly do not. To the degree that the left fancies itself as standing for social responsibility, it is hard to understand why they are so resistant to the argument that our cultural elites have a responsibility to our most vulnerable countrymen who lack the personal and communal resources to resist -- as the "20 percent" do -- the economically destructive messages which flood our airwaves.

Paterno and Pedestals

One irony of the firing of Joe Paterno was that, in the end, it served to protect his legacy. It allowed him to be held to account for the scandal he did not do enough to stop, enabling the story-line "He made a grave mistake, for which he accepted, with grace, his [ultimate] punishment, but look at all the good he did..." Another irony is, in contrast, how self-serving, hypocritical and without grace the Penn State trustees who fired him appear.

Also not in a good light, are those who, at the beginning of the scandal, seemed to take perverse joy in the take-down of JoePa. And while there is an obvious accomplishment gap, Paterno and Tebow shared this sort of critic. The ones who finds Virtue and Character threatening rather than inspiring. To whom the need for "everybody does it" self-affirmation overwhelms any desire for self-improvement.