Glenn Greenwald labels Sen. Evan Bayh as The face of rotted Washington.
And not without reason.
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by Michael Froomkin
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
University of Miami School of Law
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If Evan Bayh is the archetype of the modern congressman, doesnt this mean that Healthcare Reform and any other massive reform legislation should not be passed, since, regardless of what is promised, the end result will be rotten?
I think the lesson to learn is not total defeatism, but rather that it takes far greater pressure than you’d think was warranted to achieve even those things that are obviously sensible.
Michael, you’re a good law professor. So I presume you’re being ironic when you throw out a word like “obviously.”
Myself, I prefer “clearly,” when I want a good red flag word. Six of one, half a dozen of another I s’pose. Some understated people take to “plainly.”
Umm, I think that plainly indicates a policy preference. Normative statement, that, and nothing out of place.
It is not any more a red flag word than any other normative modifier. Certainly? Inexorably? Inarguably? Do these all jump out at you in bright red? They should, I suppose, because what you might find thereafter could be incorrect (i.e. the clearly liberal media), even wildly incorrect.
(Oh wait, there is a condition like that, colors related to letters. Darn, forgot the name of it.)
Is health care reform not obviously a sensible end towards which to work? Are you implying you disagree with this normative statement? T’would be better to just do so.
I think it is, even though I am probably going to seriously dislike the results of this round of reform.
Rhodo,
I haven’t looked at the latest polls on health care. Nor do I care to—despite the slight effort it’d take to google.
But my political feel tells me there’s a large percentage of the citizenry who just ain’t convinced that health reform is a good idea. In fact, there’s probabably a large percentage convinced it’s a bad idea. A really bad idea.
Now some people and parties think that when your own party is in the ascendency, it well behooves you to boot-stomp the opposition. Pound the other party bloody and mangled.
Run your ideas over ’em like a meth-head inexorably speeding a semi-truck overloaded full with bricks.
Maybe it’s obvious to you that that’s how America ought to be governed.
Michael, while everyone in this country believes that health care could be better, I don’t think any two people can agree on the specific changes that ought to be made. Therefore our elected representatives are doing their best to ignore the details, push through legislative pork sausage and tell everyone that “reform” is better than the status quo.
If you believe it is “obviously sensible” perhaps you can explain SPECIFICALLY why the bills in congress are so obviously beneficial. If not, perhaps you should exert “far greater pressure” by not supporting the Democratic health care agenda, instead of “hoping” congress will make things better. I would submit that the later is “total defeatism” not the former.
Actually, a very large fraction of the health bill would not be controversial but for the felt need to harm Obama. For example the bill forbids a large number of abusive insurance industry practices (e.g. removing insurance when people get sick due to alleged failure to disclose irrelevant pre-existing conditions such as acne).
The controversial parts are, as I understand it, mostly the ones that deal with financing insurance for the un-insured, mandating insurance for those who can afford it but choose not to have it, and some of the taxes (e.g. the ‘botax’ and the ‘Cadillac plan’ tax). And of course the idea that there might be a public option for the individual seeking insurance, to compete with what is very frequently a monopoly/duopoly plan situation.
Some of the cost-control provisions are also controversial, although for some fraction of those the only controversy is that the insurance industry or Big Pharma doesn’t like them (e.g. reversing the Bush rule that prevents the feds from using its buying power to negotiate lower prices for meds), not that there’s any doubt they would be beneficial to policy-holders.
As an advocate of single-payer, I can’t say I am particularly fond of some of these controversial parts, although given the total mess of the current system, and the convincing projections of how much worse it will get if we do nothing, I’m prepared to accept that even this hodgepodge is significantly better than nothing.
Steve:
First of all, pls refute your previous passive-aggressiveness; i.e. your failure to directly attack what you see as wrong.
You made a comment and responded to my rebuttal, plainly admitting your own view, and yet you failed, twice, to simple come out and say something along the lines of ‘I disagree with this opinion because’…
Intellectual laziness, that. Attack, if you are holding. Otherwise, heh. Don’t.
You can get feedback on these boards, so long as you are direct about your views and not rude to others, I would wager.
Now, on to your comments.
Who asked you to? Who referenced these polls? Not me, that’s for sure.
Well, that percentage obviously would be those with current health insurance, i.e. something along the lines of 75% of the population. Would it behoove you to communicate with the other 25% percent of the electorate?
What? Who the hell do you think you are with this statement? Do you even understand what our nation went through under the illegal administration of W Bush? Now boot-stomping is unacceptable? Why, it was par for the course for 8 long years!
Oh, dear me, do we have a late patriot? So concerned are we, about individual rights and liberties, now!!
Tell you the truth, and I must be careful because Professor Froomkin will certainly disemvowel me if I go to far, but let me tell you, young’un:
I have personally witnessed the absolute destruction of what I was taught comprised American ideals, by the Republican party. And I was taught that in US universities, no subversive elements involved.
Therefore and hence:
I laugh openly at your comical suggestion that the Dems have come to dominate politics far beyond what the Republicans achieved just months ago. Wow suddenly you got the sense of tyranny, geez Lousie where the heck have you been the past fifteen years?
In all honesty, if you would just admit your age and honest perspective on this issue we could have a decent debate, but so far I am bereft of material with which to eviscerate you.
You amuse me, for that you may feel grateful. Otherwise, not so much.
Moreover, damn straight I plan to help the Republicans destroy their own as we go forward. The Republicans have proven to be stupid and wrong over the past ten years, in an historical sense. The Dems are merely malleable…
But Michael, it is much more simple: Most of the debate is about corporate profits versus coverage for citizens.
You shouldn’t get hurt because your family has certain genes. Everyone should get coverage or we all stand to lose. The guy who gets tuberculosis because he has lousy genes and lousy insurance is going to infect multiple people on the way down; like a child molester, such an individual is both a victim and a perpetrator, and it is clearly the social environment that must be adjusted rather than resorting to individual punishment as a means of social control.
Brest cancer so far is seen as an individual, personal problem. Got insurance, get early detection and treatment. If not, well not so much. Even during pregnancy.
It should be properly understood as s social problem. Universal coverage improves everyone’s lives.
Actually, a very large fraction of the health bill would not be controversial but for the felt need to harm Obama. For example the bill forbids a large number of abusive insurance industry practices (e.g. removing insurance when people get sick due to alleged failure to disclose irrelevant pre-existing conditions such as acne).
Actually, Obama himself disagrees with your example of a non-controversial item. The Obama Plan: Ends discrimination against people with pre-existing conditions. http://www.barackobama.com/issues/healthcare/index.php Obama does not include your limitations to just irrelevant pre-existing conditions such as acne. Ostensibly, his version includes ALL pre-existing conditions, not just irrelevant ones. If there is textual support for your version, I am all ears. I have just never heard of it.
ALL versus irrelevant is a crucial distinction. I agree that truly irrelevant conditions do not matter. However no insurance company can function when they are required to loose billions of dollars by having to enroll people with terminal illnesses. These losses will either have to be subsidized by the government, or premiums will rise to cover it. If it is the former, then this plan is flawed because the government could subsidize doctors and hospitals directly at a lower cost than they could subsidize insurance companies for paying for the same care. If it is the latter, in all likelihood, people would abandon insurance completely since it would be prohibitively costly, and they can purchase it later when and if they are sick.
Some Congresscritters have suggested compelling people to purchase insurance, however this would be an unprecedented constitutional infringement by the government.
I stand by my previous assertion that Health Care Reform as promised is impossible to describe in detail let alone form into legislation and pass. All that will come from it is wasteful pork and subsidies
The ban on ANY pre-existing condition bar is universally popular with the public, and also with the legislature (at least when linked to a mandate requiring everyone to buy insurance). The insurance companies cry crocodile tears, but they know that the additional millions of customers required to buy in a very uncompetitive market will make up the costs they will have to pay.
So, yes, I’d include this in the group of non-controversial reforms, especially since it has been so abused by the insurance industry.
Michael,
I am shocked that you, as such a staunch proponent of privacy and the bill of rights, would assume that a government mandate requiring every man, woman and child to purchase something is 1) within the power of congress, and 2) desirable.
Never before has the government required people to purchase something just for being alive. Sure there are numerous examples of the government requiring combination packages, e.g. you must buy seat belts if you buy a car. However citizens of this country have never ever had to purchase something because the government told them to do it. That is the power congress is trying to usurp here.
Government has never given up power once it has taken it. What to do you think the next Government mandated purchase will be: A Chevy next time GM goes Bankrupt? Surplus Haliburton food from Iraq? Clean-burning Montana Coal and GE solar panels?
Secondly, do you really think for a second those are crocodile tears? Its Braer Rabbit. The Government which supposedly is disciplining those no good insurance companies is giving them the biggest legislative pork trough history!! Congress will use the taxing and/or police power of the federal government to force Americans to purchase their product. I only wish I could receive this treatment.
Sure “ANY pre-existing condition bar is universally popular with the public,” so would Uncle Sam writing a $1,000,000,000.00 check to every American. It does not mean that it is a good idea – it all has to be paid for by someone sometime.
I am having trouble seeing the difference between a mandate and a tax with a credit. Taxes are constitutional, why not mandates with credits for having insurance? You have to either buy private education or send your kid to public school. If you have a house, it has to be to code. This is not a new thing. (That doesn’t make it a good thing, but it’s not a NEW thing.)
We pay for the pre-existing condition bar in many ways already, not least the costs of the private bureaucracy in place to enforce it. That’s why we pay more for less health care than other rich countries. (And, conversely, to the extent that my personal taxes may go up a little if it really will supply health care for all, I am willing to pay it.)
I prefer to debate the merits of the plan itself than silly hypos about giant checks.
Randy Barnett just wrote an excellent paper on this:
http://www.heritage.org/Research/LegalIssues/lm0049.cfm
Volokh also has coverage of a debate on this issue today:
http://volokh.com/
Well, excellent except for the fact that no court is going to accept his arguments…
My Original Point was that no two Americans can agree on the specifics of what ought to be passed. You said that certain points are uncontroversial and gave the example of a ban on pre-existing conditions tied to a health insurance mandate. I believe the aforementioned paper and debate show that your example is far from “uncontroversial,” unless of course you believe it is all just an attempt to harm Obama.
Secondly, you equate mandates to taxes, but say this mandate will be uncontroversial. Americans hate taxes, so I fail to understand how you believe the government mandating that people enter into overpriced contracts with politically connected companies will be uncontroversial.
Finally, I found Professor Barnett’s arguments very compelling. Why do you feel “no court is going to accept his arguments.” They are better than Alfonso Lopez’s.
Polls show overwhelming support for the ‘no pre-existing conditions’ rule (freestanding, I’d imagine). Nothing is ever 100%, but when you have a large majority on an issue that doesn’t implicate something in the bill of rights, that’s good enough to count as uncontroversial for me.
I’m glad you enjoyed Prof. Barnett’s essay, and I admit to ignorance as to the identity of Alfonso Lopez. [*] The only one of his arguments that even made me pause was near the end, when he started talking about the mandate as a capitation tax. I showed this part to a tax expert who did the digital equivalent of howling with laughter; apparently in tax doctrine none of the words mean what they sound like, and the mandate would fall under an ‘excise tax’ and thus be legal. I don’t pretend to understand the history of why that came to be, but I trust my expert new what s/he was talking about.
[*] Edit – ok, you don’t mean a law prof, you mean the Lopez in US v. Lopez….