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Friday, March 30, 2012

Some thoughts on health care and the law

The evolution of the Obama Administration's health care plan confirmed, to me, that traditional liberalism of the kind that dominated mid-twentieth century America has been effectively marginalized. The obvious answer to our health care system was some kind of Medicare for everyone, a government-run system providing a genuine alternative to the private health care industry which, inevitably, tries to take as much money out of the economy as it can while providing a necessity. The original House bill--emerging from perhaps the most liberal House that I am ever going to see again in my lifetime--included such an option, but Joe Lieberman and Ben Nelson killed it in the Senate. Like liberal positions in foreign policy, genuine New Deal-type reforms in domestic policy get serious consideration only in Democratic primaries. After a Democrat is elected they become embarrassments that rarely if ever survive the legislative process--and so it was in this case.

The individual mandate was, of course, an attempt to provide universal coverage without creating a government system. It had the enormous political advantage of appealing to the insurance industry, led by its chief lobbyist, Karen Ignani, since it would provide that industry with millions of young, most healthy and employed customers and therefore, presumably, increase its profits still further. Yet the odds seem to be at least 50%, after last week's oral arguments, that a 5-4 Supreme Court majority will throw this approach out and take us back to square one. (I'll have more to say about the consequences of such a decision in a moment.) And reading those arguments, one sees the extent to which the Administration, by dropping the public option, lost its most effective debating points by adopting the "free-market" approach to a commodity that has no business trading in a free market. Let us take a moment to think how the argument might have been framed.

Health care is not an optional good which we may or may not choose to purchase. We all need some, and most of us, sooner or later, need a lot, the only exceptions being people who die young in accidents or homicides or those lucky folk who live healthy lives and die of their first heart attack or stroke in their 80s or 90s. (Even they, however, given the state of modern medicine, will undergo thousands of dollars of diagnostic procedures in the meantime.) And that, of course, is the difference between the threat of illness on the one hand, and other insurable threats like auto accidents or fires on the other. Insurance for those events is relatively inexpensive because they are so rare. Most of us will never have to pay large bills for car accidents or replace a burned-out home. But nearly all of us will eventually need large sums for medical care.

There is also a critical difference between health care and other "consumer products." We buy consumer products that we need, or simply want, and can afford. But because our society in general and the medical profession in particular still respects a few non-economic values, everyone who desperately needs health care gets it--or at least some of it--whether they can pay for it or not. We do not turn people away from emergency rooms because they have no insurance. In fact, as I learned from medical personnel at a town hall in 2009 which I described at length at the time (search under "town hall," "Whitehouse," and "Reed" if you are interested), for administrative reasons, those patients wind up costing a lot more.

We see, therefore, that health care is a very expensive service that everyone will need sooner or later and that everyone gets, in one way or another, regardless of ability to pay. I would suggest that such a service has nothing in common with your average consumer good and very little in common with exceptional life events for which we buy private insurance. What it really resembles are other public services that we all receive whether we have an immediate need for them or not, such as national defense, local police forces, infrastructure, and fire departments. And we pay for those through taxes, and traditionally compensate most of the people who provide them with secure, medium-income jobs. That model is obviously far more appropriate for health care and that's the model, of course, that most other advanced countries use. We alone allow various corporations, including drug companies and health insurance companies, to make billions of dollars in revenue providing a public necessity.

The problem with conceding the terms of the argument in advance emerged in striking fashion during the oral arguments, particularly with respect to the questions of Justice Scalia, whose vote is not in doubt, and Justice Kennedy, whose vote will surely decide the case. Scalia argued that a government that can pass a law requiring you to pay for health care can also pass a law requiring you to eat broccoli. I would suggest that my argument, above, shows how silly that claim is. What the mandate does is to force people to pay something for the health care which they are almost certain to receive sooner or later anyway, just as taxes force them to pay for various aspects of national defense whether they personally will ever need them or not. Kennedy, meanwhile, worried about the infringement upon liberty, but the whole health care industry is based upon the Hippocratic oath which takes away, properly, the liberty of the health care provider to refuse care. To make it possible for them to provide it, we have no choice but to make sure that everyone pays for it.

Scalia's argument reminded me of something else--an excerpt from a famous 19th-century book by Joseph Story, Commentaries on the Constitution of the United States, published 1832, to which I was fortunately exposed in connection with a conference on law in the early Republic. Story, like nearly all the Founding Fathers, was convinced that government was established for the public good and that the Constitution needed to be flexibly interpreted for it to carry out its functions. On p. 142 I found this paragraph, which Justice Scalia and some of his brethren clearly need to review:

"A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public deate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is in no wise entitled. The argument ab inconvenienti is sufficiently open to question, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature, not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. . . .In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed somewhere; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; an ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies."

In short, the theoretical possibility that Congress could pass a law mandating the purchase or broccoli is not a valid argument against mandating the purchase of health insurance. If we have any faith in our democracy, we must be able to trust that a President and majorities of both houses (including, as things now stand, 3/5 of the Senate), will not pass a law mandating the purchase of broccoli. And a truly statesmanlike opinion on the health care law would uphold it, taking note that the Congress and the executive branch spent over a year designing, considering, and passing it in an effort to solve a genuinely pressing and very serious national problem, and adding for good measure that the American people in just a few months will have every opportunity to undo the law themselves by electing Republican majorities and a Republican President, should they choose to do so. I can see no excuse for depriving them of that right.

If however the court throws out the health care law in toto, or even throws out the mandate, I think the effect on Barack Obama will be devastating. I know Democratic pundits are suggesting that he could run "against the Supreme Court," but we are in a real crisis and the country is already lukewarm about the President because most of them have seen few results. To have his signature achievement thrown out will validate some of the more extreme accusations against him and make him look highly ineffective.

We are potentially at a turning point in our history. Justice Story believed the government was established to promote the public good. Franklin Roosevelt adapted that philosophy to the industrial era. For the last thirty years Republicans have engaged in an all-out assault on that concept, and they are not too far from a possible victory. In the last two great national crises the Supreme Court was on the losing side. This time, if they strike down the law, they could do nearly as much to assure victory for the right wing as they did in Bush v. Gore.


Anonymous said...

This is the best argument for a single payer system I've seen anywhere. Too bad it's supporters never put it that way when they were trying to sell it to the public.

Anonymous said...

good academic argument. Very solid. A+ Professor.

Too bad Scalia seems to have bought into stupidity (Broccoli? WTF?). The intellectual rigidity of the right is incredible. They are preparing their own destruction. As the middle class is destroyed they destroy the basis of the democracy they pretend to protect. As the whole worlld looks on America becomes more and more a joke.

Anonymous said...

Another historian agrees:

Anonymous said...

"...whole health care industry is based upon the
Hippocratic oath which takes away, properly, the
liberty of the health care provider to refuse care."

That is factually untrue and quite false. You need
to educate yourself before you make such
a blanket untrue statement.

Any provider can REFUSE to treat anyone EXCEPT
in the EMERGENCY (life threatening) situation.

The same way patients have rights, so do the

Hence the so called "patient panels" that providers

Some physicians, have totally closed patient
panels and are NOT accepting new patients at all

DAngler said...

Anonymous claims that the Hippocratic oath does NOT take away, PROPERLY, the liberty of the health care provider to refuse care. I think the Professor got it right, and the doctors who do refuse care are violating the Hippocratic oath. I'm sure Anonymous missed the Professor's point and focused on the fact that many doctors do refuse care.

PJ Cats said...

Dear Mr. Kaiser,

I don't think it's about broccoli. I don't think it's about logic, about arguments (except the final argument that government has no right to exist because it might restrict any liberty) or having a decent discourse. It's just another power grab, this time by the supreme court. Your democracy is basically gone since 2000. It's not a turning point either. You're way past that.
And they'll do it. They'll do this and much more. After all they already did, it's little trouble...
You know that feeling you get when you're talking to someone who wants something real bad and there's no arguing with them? They want something real bad. I wouldn't for the life of me know what it is, but I see things breaking. That's real fun for some people. How unhappy they must be.

Anonymous said...

Roberts, Scalia, and Alito were appointed to torpedo any and all NewDeal Schemes

Anonymous said...

The Hippocratic Oath:

I swear to fulfill, to the best of my ability and
judgment, this covenant:

I will respect the hard-won scientific gains of those
physicians in whose steps I walk, and gladly share
such knowledge as is mine with those who are to

I will apply, for the benefit of the sick, all measures
[that] are required, avoiding those twin traps of
over treatment and therapeutic nihilism.

I will remember that there is art to medicine as
well as science, and that warmth, sympathy, and
understanding may outweigh the surgeon's knife
or the chemist's drug.

I will not be ashamed to say "I know not", nor will
fail to call in my colleagues when the skills of
another are needed for a patient's recovery.

I will respect the privacy of my patients, for their
problems are not disclosed to me that the world
may know. Most especially must I tread with care
in matters of life and death. If it is given to me to
save a life, all thanks. But it may also be within my
power to take a life; this awesome responsibility
must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

I will remember that I do not treat a fever chart, a
cancerous growth, but a sick human being, whose
illness may affect the person's family and economic
stability. My responsibility includes these related
problems, if I am to care adequately for the sick.

I will prevent disease whenever I can, for
prevention is preferable to cure.

I will remember that I remain a member of
society with special obligations to all my fellow
human beings, those sound of mind and body
as well as the infirm.

If I do not violate this oath, may I enjoy life and
art, be respected while I live and remembered
with affection thereafter. May I always act so as
to preserve the finest traditions of my calling
and may I long experience the joy of healing
those who seek my help.

Although most US medical school administer some
form of oath a physician is NOT mandated to

As one can see by reading the oath, there is
no mention of refusal of care.

Furthermore, the behaviour of a health care
provider in the USA is governed by the applicable
laws and not the oath.

There is no law currently on the books that
would disallow a provider to refuse care unless
it was a life threatening situation.

An emotional response, like DAngler's is not
a substitute for facts and reality.

Anonymous said...

The last 12 years before I sailed/moved to New Zealand , I was living and working in Hawaii. The State that has the best health and life expectancy and the least percentage of people dying in hospitals in the USA. There almost every employer was required to provide free health care coverage to all of their full time employees. About 98% of the population had coverage . Business did not go broke over this . GOP has done a good job in their negative propaganda on this issue and has done the nation a tragic disservice. Sad.--Alohamac

Anonymous said...

It seems the comments are focused on the hippocratic oath. I was fascinated by the professor's quote on power of govt. and flexibility in interpretation of constitution. The one opinion on medicine is therefore that being a doctor is just another business option and on government to quote a GW Bush that "the constituiton is just a God***ned piece of paper". I think this is what the whole thing is about. The Common Good is in nobody's interest in the pharma or medical or insurance industries or hospital complexes. They get huge profits now. But when the medical costs rise form 17% to 25-30% of GDP in USA over the years collapse will certainly be imminent as life expectancy will decline for most of population due to poverty and debt. The fundamental problem is a huge crisis such as in Greece or now Spain and Portugal. It is not an individual private problem but a national crisis of enormous proportions that has to be dealt with nationally and centrally as elsewhere on earth not to the profit of some private interests. We go back to Rousseau's concepts here of general will.

Ray C Neill said...

I thought your essay on the health care dilemma was both logical and eloquent. Common sense, however, is not so common and does not thrive well in the arena of corporate greed. Readers who have myopically focussed on the Hippocratic Oath have overlooked your most salient points. Obama, in his defense, has tried to cobble together a health care plan that will appeal to everyone. The result has been a sort of platypus - awkward but workable. I suspect that you favor a more elegant approach. Galaticsurfer echoed my thoughts in that a "government for the people" should do more than destroy itself. Poorer countries have done more for their citizens in terms of health care and life expectancy data supports this fact. Scalia's argument represents the frequent disconnect between constitutional idealism and the fundamental reality of the people that it is suppose to protect. Ray C. Neill

Anonymous said...

Dr. Mr. Neil:

facts are not myopic - they are simply facts.

Contrary to your preference, there are still voters
in this country who prefer to take responsibility for themselves and do not care for government to
usurp that right and duty from them.

There have not been massive deaths on the streets
prior to obamacare. Nor there will be any after it is struck down.

You need to understand that there are a great many
voters that do not share your desire for the
government's intrusion into personal health care
and health insurance.

If the contrary was true, there would probably already been the single payer system that the
owner of this blog clamors for.

Anonymous said...

Anonymous bloviates:

"You need to understand that there are a great many voters that do not share your desire for the
government's intrusion into personal health care
and health insurance.

If the contrary was true, there would probably already been the single payer system that the
owner of this blog clamors for."

When did "many voters" ever even get this question put to them? Note -- using the latest Republican disinfo and obfuscation doesn't count. In fact, Medicare is **tremendously** popular -- not least among the ignoramus "git gummint off my back" crowd. (Of course, it's no secret that the "git gummint off my back" crowd almost always feeds very well at the public trough. They just want to freeload.) You look up stats on the inputs and outputs for American health care versus that in the entire rest of the industrialized world, and then try to persuade me or anyone that ours is anything but lousy. Lousy as in, sucks up extraordinary resources, delivers relatively paltry results, and is set to get even worse.


A couple of years ago my believing Dem friends were telling me that Obama's plan would, ultimately, result in the demise of the health insurance "industry". Now they're telling me, with a straight face, that overturning Obama's plan will have the same effect.

Is it any wonder that both parties offer precisely NOTHING in the way of coping with external reality? No matter the outcome, my believing Dem friends insist that their worthless "leader" will somehow prevail in the end. On the other side, I'm sure that no-talent stenographers like Peggy Noonan or David Brooks are ready to call anything coming out of Romney's mouth as positively Lincolnesque.

But I really don't care how the Court decides in this matter. To my mind, Obama's "plan" was always a betrayal, and for that I believe he deserves a stinging defeat. Further, pursuing the worthless thing at all was the purest strategic idiocy: If Hope'n'Change had any judgement at all, he would have begun his term with sustained and ferocious attackes on the finance "industry". It was plain that the 2008 financial crisis was VASTLY more fundamental and urgent than any half-assed nibbling-round-the-edges "reform" the Dems were going to throw together.

If Obama were nearly as bright as his PR claims, he would have consciously and explicitly sought to break the power of the finance sector. He would have launched serious investigations, and brought some oligarchs to justice. And in 2008 he could have carried that off, and with it won the loyalty of a huge segment of the population. AND THEN he could have pursued GENUINE health care reform, i.e., a robust single-payer system.

Obama's strategic incompetence is such that he makes Bush the Lesser look capable. Think about **that**.
-- sglover

Unknown said...

If health inurance was really insurance, it would insure against risk. People do not insure against oil changes and dead batteries in their cars. They insure against catastrophic injury while operating an automobile and against property loss. Similarly, those with homeowner's insurance do not insure against changing worn out carpets or broken water heaters, but against the risk of fire or storm damage for which monetary implications are grave.

Why then, does health insurance cover immunizations, periodic physical exams and treatment for minor illnesses, such as colds and flu in otherwise healthy people? Could not health care be categorically divided into preventive care and curative care, with the former subsidized by the government to encourage participation by the greatest number of citizens, and the latter covered by personal insurance against the risk of a catastrophic individual expense for curative treatment?
In such a system, it would be necessary to insulate medical professionals and facilities from the risk of catastrophic loss for malpractice. A procedure that has been suggested is for medical boards of competent individuals to screen medical malpractice suits for legitimacy before they can proceed through the legal system with a view toward eliminating the expense of frivolous lawsuits.
One more point concerning pharmaceuticals. The US customer pays more for drugs than citizens in countries with national health care systems that have the cumulative power to negotiate prices, as much as 1 1/2 times a much. Many of these drugs are preventive in nature and could be included in a formulary for government subsidy. With the government negotiating prices for the taxpayer, the price of drugs would naturally equate to that which other countries pay. After all, pharmaceutical companies are not losing money selling their products to Canada and Europe.
Two points in summary. First, the terms risk and insurance should not be separated. Second, the only health care system worse than any other is the one we currently have which does not provide adequate health care for our citizens and which, if unchanged, will provide an even less healthy populace at an expense the country cannot afford.

Anonymous said...

To sglover:

Voters of the Commonwealth of Massachusetts,
myself included, got to vote on a senate candidate.
The majority of us voted for Sen. Brown, who was
subsequently sent to Washington, D.C. and sworn.

After arrival of duly elected Sen. Brown, instead of
appointed Kirk, no senate votes for obamacare
have been scheduled.

Hence, some voters had the chance and used it
to express themselves vis-a-vis obamacare.

As for bloviating - it is quite obvious who has
been doing that!

Anonymous said...

My recollection is that the Dem ran a lousy campaign, practically telegraphing to voters that as a Dem, the election was hers by right. Brown squeaked out 52% of the vote -- impressive for MA, sure, but not exactly a landslide.

As a legislator Brown evidently backed "Romneycare", which is often described as a model for Obama's scheme. Whether he did that last out of conviction or tactical political considerations, he did it.

I'm having a hard time seeing how Brown's election represents anything close to what you say it does. Sorry to bring up facts and such.
-- sglover

Bozon said...


Many thanks for this very detailed summary of a difficult area.

The health care debate, and the options which our system is capable of presenting, highlight inherent weaknesses we have long faced, and will face.

It is not the kind of health care system such a political system is capable of implementing, politically, structurally,

and many other similar non health care examples spring to mind.

All the best,

David Kaiser said...

To tne anonymous Massachusetts voter: It is typical of current Republican political philosophy to claim that a sweeping piece of legislation that suddenly commanded only 59 out of 100 Senate votes instead 0f 60 had thereby suddenly lost all legitimacy. Sorry, I don't buy it.

OldSchoolLefty said...

We don't know how SCOTUS will decide here, though throwing out the mandate is very possible. If so, it will be a devastating defeat for Obama - not just because this is his major accomplishment, but because on Monday he doubled-down his now-trademark fashion.

For the record, I favor a single-payer system a la Canada, run at the province (state) level, and my main fault with Obamacare is that is goes nowhere near far enough in bringing a better, fairer, and more cost-effective system to the USA. Like Walter Russell Mead, I think the Blue State Model is broken and I am dismayed that progressives seem unable to conceptualize, much less realize, a more just yet affordable social welfare system for the 21st century.

That said, Obama's comments, directed at the Supreme Court, bordered on the demagogic and were frankly beneath someone who was a longtime constitutional law professor.

As with the Trayvon Martin case, Obama said something needlessly provocative which will do him, and his party, no favors come November.

Anonymous said...

To Dr. Kaiser and sglover:

Whether the obamacare has legitimacy or not,
whether it passes the constitutional muster or not,
is for the Supreme Court to decide, as even the
Justice Department grudgingly acknowledged
yesterday, contrary to president three times clarified

It is an undisputable fact, that upon arrival of
Sen. Brown to Washington, D.C., no votes have been
scheduled on obamacare. Even though some
have been scheduled in anticipation of yet
another democrat winning that election.

The issue with the 60th vote is not legitimacy,
but the simple fact that had not there been 60th
vote of non-elected but appointed Kirk, the
filibuster would have prevented the legal
existence of obamacare.

As for my personal political philosophy, I am an
independent and simply want the nanny state
to butt out of my business.

I have had personal healthcare insurance
all my adult life and find no reason why the
government, or Dr. Kaiser, or sglover or anyone
else would have anything to do with it.

To government and anyone else - mind your
own business and leave me and my personal
health care insurance alone.

As for sglover claiming that 52% is not a
landslide, the Commonwealth of Massachusetts
is currently governed by the governor who
hasn't gotten even 48% of the votes casted.

That still hasn't stopped him from being a
winner and installed as the governor.

Anonymous said...

To Dr. Kaiser:

the Massachusetts' governor, who was elected
by less than 48% plurality, and not a majority,
upon being sworn in, proceeded to appoint
Kirk to US Senate.

Appointed Kirk in turn rubber stamped everything
that the current administration asked for.

Upon the senate election in the Commonwealth of
Massachusetts, Sen. Brown was elected with
majority of votes and sent to Washington.

The other vote in the US Senate on obamacare,
came from Kirk, an appointed, but not
, stand in for the voters of the
Commonwealth of Massachusetts.

Although, you as you so eloquently stated:
"Sorry, I don't buy it."

the voters in the Commonwealth of Massachusetts,
especially the ones whose duly elected Sen. Brown
was prevented from casting a single vote on
obamacare, beg to differ with you.

Last time I was taught democracy, it meant
that elected representatives should
be the ones representing the voters that had
elected them. Not the appointed ones.

Had Sen. Brown gotten any chance to vote on
obamacare there would have NOT been
any obamacare. There would have not been any
lawsuits and anything for the Supreme Court
to render a decision on.

The filibuster would have prevented that and spared
us the lost three years and the state we are now in
with respect to obamacare.

However, reality being what it is, that is neither
here nor there.

The Supreme Court will hopefully invalidate
this - illegitimate law - at least in the eyes of
the voters of the Commonwealth of Massachusetts,
whose duly elected representative never had a chance to cast a single vote about it.

Doug Ptacek Jr said...

First of all, Professor Kaiser I am a big fan of yours. I stumbled across your blog a couple of years ago and have been a faithful reader ever since.

I am an American citizen who has been living in Taiwan for more than twenty years now. I cannot really imagine returning to live in the U.S. and one big reason is the cost of healthcare.

Here in Taiwan we have a single payer healthcare system. The right wing arguments against a single payer system are nonsense.

1. We have excellent healthcare options here- there are plenty of fine doctors and a number of first-rate hospitals with the latest technology.
2. No doctor has ever asked me how I can pay before recommending a treatment or a diagnostic procedure (such as an MRI). If it is the doctor's opinion that a patient needs this, the doctor recommends it without worrying about cost.
3. No doctor or clinic is required to accept the government health insurance. They are free to charge you cash if they want. Most would be foolish to do so though because they would simply drive patients (i.e. business) away.
4. The very existence of a single payer insurance system keeps the price of healthcare down to affordable levels. Even doctors who are so elite that they can safely refuse to accept the government health insurance still must keep the rates they charge low enough that they don't drive away all but the very wealthy.

I have a friend who had his cancerous kidney removed by such an elite doctor. The doctor's bill and the bill for staying in a private room at a top-notch hospital together cost the equivalent of several thousand U.S. dollars. A significant but far from lifestyle-altering sum.

I have epilepsy and take prescription medication for it daily. I usually show my government health insurance card to the pharmacy to get it, but on a couple of occasions I've had to pay for my medication out-of-pocket. Even without insurance, the price of the brand-name medicine (Keppra) is only a fraction of what the equivalent generic medicine costs in the States. The drug company is obviously making a profit off the much lower price we pay here.

When it comes to healthcare, Americans are getting screwed.

Anonymous said...

To sglover/Dr. Kaiser - perhaps this would remind
two of you what actually DID happen and whether
the election of Sen. Brown was what I claimed
it was.

Rep. Frank says he urged Obama to back off
healthcare reform

Rep. Barney Frank (D-Mass.) thought President
Obama was making a "mistake" in pressing for
healthcare reform in 2010 and urged the White
House to back off after Democrats lost their
60-seat majority in the Senate, the congressman
tells New York magazine.

"I think we paid a terrible price for healthcare,"
Frank told the magazine in a lengthy interview as
he prepares to retire at the end of his 16th term.
"I would not have pushed it as hard. As a matter of
fact, after [Sen.] Scott Brown [R-Mass.] won [in
January 2010], I suggested going back. I would have
started with financial reform, but certainly not


Anonymous said...

Democrats expressing buyers’
remorse on Obama's health law