Rational Arguments

Since I started this some months ago, I’ve tried to stick to health policy.  Sure, I have opinions on other topics, but I felt more assured that on that topic I had credibility and experience.

Once in a while, though, health policy overlaps with other areas of interest.

Today, President Obama nominated Elena Kagan for the Supreme Court.  And, while I eagerly watched to see what the minority party would say about it, this was one of the first things I saw:

- SEN. JOHN BARRASSO (R-WY): “The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue… she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing.” [TP, 5/10/2010]

- REP. JOHN BOEHNER (R-OH): “On this, and other issues – including the Constitutional questions arising from Washington Democrats’ new health care law – Solicitor General Kagan deserves a fair hearing on her qualifications, and her commitment to fairness, the rule of law, and interpreting the Constitution as written.” [GOPLeader, 5/10/2010]

- GOP.COM: A research document published by the GOP asks, “Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?” [GOP, 5/10/2010]

I’m always amazed at the hypocrisy in Washington.  There should be no “litmus tests” unless you want one.  There should be no “judicial activism” unless you don’t like the law.  And, we should stick to the exact text of the Constitution, unless you don’t think it says what you want it to.

We’ve discussed this before.  No one had a problem with the mandate before this law.  But forget that.  Even other pretty conservative judges can make arguments that the law might be constitutional:

Here, though, my colleague Igor Volsky highlights a section of Justice Scalia’s concurrence in Raich v Ashcroft:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

So first: That’s Justice Scalia. Second: Purchasing health insurance is clearly economic activity, and the state of the health insurance market in any given state clearly does substantially affect interstate commerce. As is generally the case with words in the English language, the phrase “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” could be construed in a few different ways. But for a very long time now the Supreme Court—including its most conservative members—have construed it as authorizing general economic activity. The live legal disputes concern regulation of non-economic activity that’s alleged to have economic impacts.

Much of the press on the lawsuits to overturn the ACA hints that it’s an uphill battle.  But somehow, Republican Senators are already saying that if Kagan is not willing to say the law is unconstitutional, then that’s a problem?

So, basically, they want to apply a litmus test to check her willingness to be a judicial activist.  I’m not impressed.

I was just on the radio talking about the meaning of Senator Snowe’s vote on health care reform, and I think it’s worth a post.

Since I admitted I was wrong about Senator Baucus’ plan, I’ve been trying to rethink whether the administration has been right in their quest for bipartisanship.  Whether or not you agree with President Obama’s agenda, you have to admit that he’s a pretty gifted politician.  I can’t count the number of times I thought, during both the primaries and the general election, that he was doing the wrong thing.  Turns out each time I was wrong, and he was right.

So maybe he was right about this, too.

You see, without Senator Snowe’s support, the administration (and the Senate) would need to negotiate with a handful of Senators, who are often far more conservative than Senator Snowe.  They are not only against the public option, they also seem to be against robust subsidies.  Now, with Senator Snowe’s support, they need to negotiate with only one reasonably moderate Republican.  If they get her support, it seems very unlikely that any Democrats would vote against the bill; certainly they won’t filibuster it.  And, really, the only support they need is to allow the bill to come to the floor for a vote.  They won’t have any trouble passing it.

Moreover, Senator Snowe has been vocal about the need for subsidies large enough to make insurance affordable to the middle class.  Negotiating with Senator Snowe may ironically yield a much more liberal bill than negotiating with Senators Lincoln, Bayh, Landrieu, McCaskill, Pryor, and Nelson.

Did they really think this far ahead?

UPDATE:  Since some you asked, here is a link to the radio interview.

Another question I’m getting more and more:

Why don’t you support tort reform?  The cost of malpractice is the true unspoken cost of health care.  Why can’t [President] Obama admit that trial lawyers are the reason health care costs are so high in this country!!!!!

OK.  Never let it be said the cost of malpractice is an “unspoken cost”. Everyone knows it’s a big issue. I think so, the AMA thinks so, and I bet even the administration thinks so. My center has done work on this issue and we have a study specifically focusing on negligent claims that we hope to publish soon.

That said, good estimates – MANY studies – have been done to look at the costs of defensive medicine.  Estimates range from the tens of billions of dollars to about $200 billion.  For the sake of argument, let’s say $100 billion is a good estimate. We can lose sight of the fact that $100 billion is a LOT of money. That’s an enormous sum. It’s just dwarfed by the more than $2 trillion we’re spending on health care every year.

And here’s the more important thing. Malpractice reform will not contain health care costs. Even if I’m low-balling it, and it costs$200 billion, that’s less than 10% of spending if we got rid of it entirely. Health care costs would still go up at an insane rate, people would still be uninsured, more would be underinsured, and nothing would change for the future.

We need to fix the malpractice system. We do. Even President Obama said so to the AMA. And we should pursue it.  But it’s not the same issue as health care reform, and we shouldn’t confuse the two, or neither will get the focus it deserves.

People keep asking me what I thought about President Obama’s address to the joint session of Congress last week.  Here’s what I told the Indy Star (who asked first):

I usually try not to comment on the politics of reform, but that was the heart of what President Obama was trying to accomplish tonight.  I didn’t hear anything new in terms of policy; in fact, I think anyone following this closely has heard much of the specifics of the plan before.  My feelings on the bill remain the same: I think it will definitely lead to more coverage, give people more security in their insurance, and cost a lot of money – without adequately containing  costs in the long term.

However, I think that improving access has always been the foremost goal of the administration and as such the bill is not surprising.  I think what was surprising tonight was the President’s commitment and forcefulness.  I think he’s staked his Presidency on this.  He was adamant in that he would not fail to pass reform, he called out others on lies about the bill, and he delved deeply into the moral implications of reform.  This reminded me more of candidate Obama than President Obama.  I think it’s likely to have helped his cause a great deal.