Saturday, February 5, 2011

What would success look like?

In my most recent posts, I have tried to assess and address the arguments about the constitutionality of the health insurance mandate, and I must admit a couple things. First, although I do not concede that the mandate is unconstitutional, I admit that in my view, the balance of the argument is tilted in favor against its being constitutional. (I must be clear that by "constitutional," I mean consistent with a good faith reading of the constitution, and not necessarily the case law or the ultimate decision the Supreme Court will hand down.) Second, in what might plausibly be described as a "declaration of closed-mindedness," I favor the mandate regardless, at least insofar as I believe that if it is struck down, the rest of the health insurance reform will be struck down as well, even though I am moving toward supporting an alternative to the mandate to avoid the constitutional problems.

I do so largely on the assumption that the reform might "work" and on the rationalization that in this case, the just ends that I envision for the law exceeds the arguably unconstitutional means used to acquire those ends. I do think it would be a bit facile for me to argue that this is a monumental choice between two competing goods and that in this case, it is clearly obvious that the systemic good of adherence to constitutional limitations on governmental power must give way to the speculative good that the health insurance reform will bring about, providing that it succeed. Simply put, it would be offensive if I were to analogize this particular compromise I make on my principles with, say, opposition to the Fugitive Slave Act of 1850, which, while probably constitutional, was deeply immoral by any standard of morality that I would care to adhere to. (As an aside, there is an argument that that act was unconstitutional because although the constitution allowed the federal government to pass a law about remanding slaves, it put so many impositions--"mandates," if you will--on state-level officials to act and because it denied due process to the "fugitive" slaves.) I write this to disclaim that I am raising the stakes to where they will not go.

I am indulging in a political compromise and stand to be called out if in the future similar reasoning is used to support a policy I find objectionable. I do, however, and perhaps this is an attempt to have it both ways, reserve the right to criticize those objectionable policies to the degree in which the spirit of those policies violate the rights and autonomy of others beyond what the health insurance reform will do. In other words, if Congress enacts a law mandating every American to buy a pound of broccoli a week, I willingly submit to be hoisted on my own petard, but if Congress again mandates a peacetime draft, I reserve the right to question its constitutionality.

Still, what do I mean by "success" when it comes to the health insurance reform? To start, I do not think this law is a panacea, and even if it "succeeds" or works well, some people will be negatively affected. Much criticism--and it's a just criticism--is lobbed at President Obama for saying that if you like your health insurance now, you will not have to change it. I offer only in mitigation, and not justification, of Mr. Obama's claim that 1) it is not unheard of for politicians to promise a whole loaf of bread when they know full well they can at best delivery only half a loaf; and 2) the falsity of this particular claim was so painfully obvious that I have a hard time believing any one's mind was swayed, even though at the time I would have preferred he be honest. All this is by way of saying that I will consider the health insurance reform to have been a success if the following positive things happen and the negative things are kept in check:
  • Premiums would be affordable to all who want insurance. Premiums for the very sick who would otherwise be uninsurable or cut off from benefits would be limited to at most a certain portion of their income.
  • The insurance companies somehow find a way to rein in some costs and perhaps move away from the "fee for service" model of reimbursement. (I offer this only as a speculative possibility.)
  • The health insurance exchanges give customers a clear view of what they are purchasing.
  • The negative effects of the bill would be limited to 1) people paying slightly higher premiums and co-pays, but well within range of what is affordable (I realize that "affordable" is a term of art and even paternalistic....what I deem affordable to me may not be affordable to thee); 2) non-urgent services might require longer waiting periods; 3) compensation for doctors remain commensurate enough with the cost of their education (I say this not so much because I don't think doctors can't take care of themselves, but that one possible perverse incentive of this law would be to create a disincentive for people to enter medical school).
The reform will have been a failure if the following happen (there may be others, but these are the potential downsides that I foresee):
  • People simply don't get timely coverage for urgent care (I suppose "urgent" is a term of art).
  • Insurance companies go bankrupt and doctors are unsure of payment.
  • The employer mandates become too onerous and, maybe worse, difficult enough to understand that job growth will be impeded on a huge scale. (I anticipate a decrease in some job growth, but if it is too large, this will be a bad result.)
  • The obvious gaming of the system that will go on might become so severe as to overburden the health insurance industry with costs.
  • The law might entrench the health insurance industry in the government in such a way that any future corrections to the system that will be needed would be impossible to implement.
Again, when I say the health insurance reform is speculative, I do mean that. But I do hope it passes Supreme Court review and I hope that it succeeds.

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