The feeling amongst those “in the know” is that the Supreme Court is likely to declare the “individual mandate” from 2010’s Affordable Care Act “unconstitutional,” thus mortally wounding what was Barack Obama’s central piece of legislation of his first term. Yippee, the Republic is saved!

Of course, there is no real constitutional justification for the vast majority of what the government does on a daily basis, and this goes beyond things like foodstamps or the space program. Since the Second World War, none of America’s array of overseas military adventures has been “constitutional” in the sense of being declared by act of Congress. This doesn’t seem to bother self-styled “conservatives” a great deal. They are, however, able to get their minds around the fact that “the government shouldn’t make you buy something,” and thus they’re patting themselves on the back after their favorite “Originalist” justices have attacked the legislation of the rival party.

The reality is that “legality” (the base conception of “constitutionalism”) is itself an illusion. Paper documents and the imprimaturs of men in wigs and black robes have rarely restrained governments; they have instead offered justifications for the use of state power. Revilo Oliver was correct when, in his more mainstream days, he advised that conservatives make the Constitution the basis of their political philosophy—not because they should embrace “legality” but because the document was the articulation of the social world of the elite class of America’s historic majority. The fly in the ointment of this type of thinking is that the class of George Washington—a planter, slave owner, and one of the wealthiest men in the colonies—is long gone; all the Constitution is now is a document to be interpreted by tricksters like Elena Kagan, who, in one of her few published articles, recommended the banning of “hate speech” by legally classifying it as pornography.) 

People want things that they like—things that they think are “moral” and “good,” and which might benefit them materially—declared “legal,” if not subsidized. Things they don’t like, they want to be declared “unconstitutional,” “socialist,” “un-American,” etc. (Liberals, too, will rediscover the “original intent of the Founders” when it suits them.)

In this line, Larence O’Donnell, MSNBC’s self-declared “socialist,” was correct when he said that Obamacare was fatally flawed from its inception; the Democrats should have abandoned its Byzantine structure and new mandates and incentives, which “scare people,” and instead simply stated that they wanted to give "Medicare to all." This would have forced Republicans to challenge Medicare, as opposed to allowing them to claim that they were “protecting Medicare.” (The exchange begins around 4:05.)

Medicare is no less “socialist” than Obamacare—indeed, one could argue that it is more—and Medicare is already the kind of debt-financed fiscal disaster conservatives claim Obamacare will be in the future. But the fact remains that voters are used to Medicare, they like Medicare, and they want their Medicare.

Imagine if Judge Antonin Scalia began stating publicly, “Now wait a minute—you want the government to fix prices and pay for healthcare for the elderly? Will it do the same for broccoli and cellphones!? What can government not do, if you allow it to do this!?” Hardy-har-har... The public would, of course, be appalled by his suggestion, and Scalia might be declared insane and dismissed from the Court. 

In turn, if we were able to install Alex Kurtagic as Grand Emperor of Magna Europa, I’m sure we would have little trouble finding a colorful “originalist” legal scholar who’d be eager to declare that our new regime was in line with the Founder’s intentions.

In closing, a note about DC politics. Inspired by Andrew Sullivan's article about Obama’s three-dimensional-chess “long game,” perhaps we should conclude that the Court’s decision was all part of a multi-layered scheme by...Mitt Romney! The Governor created “Romneycare” in Massachusetts in 2006...knowing that it would be used as a model by an upcoming Democratic president...and become unpopular...thus ensuring Romeny’s future electoral triumph.

More seriously, my guess is that healthcare costs will continue to rise, O’Donnell will be proven quite wise, and calls for “Medicare for all!” will soon be heard from both sides of the aisle.

The last few weeks have provided two media reports which shed light on why the health care system is broke.  The first is Dr. Atul Gawande’s compassionate and humane piece in The New Yorker on the need to move away from the survival at all costs mentality and focus on easing suffering and quality of life as one’s time on this earth is winding down.

The issue has become pressing, in recent years, for reasons of expense. The soaring cost of health care is the greatest threat to the country’s long-term solvency, and the terminally ill account for a lot of it. Twenty-five per cent of all Medicare spending is for the five per cent of patients who are in their final year of life, and most of that money goes for care in their last couple of months which is of little apparent benefit.

Spending on a disease like cancer tends to follow a particular pattern. There are high initial costs as the cancer is treated, and then, if all goes well, these costs taper off. Medical spending for a breast-cancer survivor, for instance, averaged an estimated fifty-four thousand dollars in 2003, the vast majority of it for the initial diagnostic testing, surgery, and, where necessary, radiation and chemotherapy. For a patient with a fatal version of the disease, though, the cost curve is U-shaped, rising again toward the end—to an average of sixty-three thousand dollars during the last six months of life with an incurable breast cancer. Our medical system is excellent at trying to stave off death with eight-thousand-dollar-a-month chemotherapy, three-thousand-dollar-a-day intensive care, five-thousand-dollar-an-hour surgery. But, ultimately, death comes, and no one is good at knowing when to stop.

The second is a 60 Minutes Report that deals with many of the same topics.  Here we find that 85% of medical care in the US is paid for by insurance companies or the government.  Under such a system, it’s little wonder that people don’t use such services prudently.

Government, through Medicare and Medicade alone, pays for nearly a third of medical expenses.  This doesn’t include the health benefits which public service employees receive.  For all the talk about “socialized medicine,” the current system, even before Obama care kicks in, is a sick joke.  Imagine that half the population got to eat whatever they wanted for free.  Of course this privileged class would save tons of money and become very fat while everybody left to buy their food on the market would be shocked at how expensive bread, beverages and fruit had become.  Whether a total socialization of the system would be better or worse is hard to say, though what is certain is the current high costs are a government, rather than a market, failure.  

 

Lawrence Auster joins Richard to discuss the real meaning of Obamacare, what might be done to stop it, and the future of traditionalism.

From The New Republic

Imagine for a moment that you work in a hospital emergency room. And just outside the door, a man has collapsed from a heart attack. Inside the facility, literally feet away from where he lies, are the equipment and knowledge to save his life. But this man doesn’t have health insurance.

Would you treat him anyway? Or let him die?

If you think the way the vast majority of Americans do, you’d choose to save the man. Whatever your political attitudes, the thought of withholding life-saving treatment from somebody because of ability to pay seems too cruel.

And that’s fine. I’d make the same decision! But if you believe that, then you should also support what remains one of the most controversial elements of health care reform, even after its enactment. That element is the individual mandate.

I’m a libertarian nut, so I would privatize the hospitals and let them decide if they want to treat people for free, only treat people who look like they have the means to pay eventually, only treat people of a certain age or whatever.  But I’m guessing that like the writer suggests I’m in the minority and most people would say doctors should be required to treat anybody with a life threatening condition.  If you take that position, Cohn has a good point that it’s hard to also oppose the individual mandate.

Of course, life isn’t always as simple as a person having a heart attack and you having the means to save him.  What if a person needs ten hours of a surgeon’s time to have a 2% chance of surviving and while he’d be performing the operation there’d be a 16% chance of someone with a 42% chance of survival coming in?  Or a private nurse for the next five years for a 50/50 chance when the private nurse if she worked elsewhere would have a 5% chance of increasing the lives of ten people by five years each?  Nobody but God could make such decisions, or even come up with the numbers to put into a formula.  The only fair and moral system is one that relies on the consent of all actors involved in each transaction.  In that case, nobody is ever required to treat anybody.  Health care providers can be as humane or cold as they’d like.

But if you’re not a radical antistatist you probably disagree and believe that there need to be at least some cases where a doctor is mandated to treat someone in need.  How does one take this position accepted by all civilized people and oppose forcing everybody to pay for what they’re guaranteed to receive?  

The Media Research Center compiles news clips from paranoid leftists on the Obamacare protests:

Though the word "historic" has been thoroughly drummed into my head by the cable news cretins, tonight's healthcare vote didn't in the least mark a turning point in American history. It was instead a last shovel of dirt on what was once a decent and free country. Or perhaps it wasn't quite the last. Some patriots might hope that this most recent outrage in Washington will finally "wake up" the American people to socialism ... but if they weren't awaken by the earlier thefts of liberty and bureaucratizations of their lives over the past century, which were comparatively more dramatic, then there seems little reason to believe that they're in a better position to awaken now. I have no doubt that basic healthcare in this country will become dreadful over the coming decade -- imperceptible at first, of course, a dumb doctor here, a waiting list there... However,  I can say that at no time in my life could a man freely contract with a physician for his services and not have this relationship mediated by countless layers of governmental-corporate paper-pushing and price-fixing. There comes a point when every traditionalist moves from searching for remnants of a moral and constitutional order to conserve and begins instead to long for the collapse of the current system.       

We have to pass the bill so that you can find out what's in it. 

~Nancy Pelosi

As my past writings on the subject can attest, I think Obamacare is a horrendous, likely ruinous, social program. I can thus summon one and half cheers for the Republican leadership, which despite having backed George W. Bush's unfunded Medicare extension but six years ago, has decided to come out strong against Obamacare, follow the Tea Partiers, and try to "kill the bill."

As a friend wrote to me in an email:

Things can always get worse no matter how much the current system sucks. We should applaud the Republicans here for not trying to reach out and do something "bipartisan." Give me spineless slimeballs over true-believing liberals.

There's truth to that ... but there is also a way in which a political opposition, even a forthright and unwavering one, can do serious intellectual damage to a cause by essentially agreeing with the premises of its adversary and not actually defining what is wrong with the other side.