Thursday, July 24, 2014

next to our liberty, the most dear

I get the argument against Obamacare.  It will probably lead to increased costs even if it lowers prices in the short term.  It will probably mean some people will have to pay more in order to ensure that other people can pay less.  It will do little to nothing to solve the shortage of doctors and medical providers.  And many of its provisions are constitutionally questionable, regardless of what the Supreme Court says.  I stipulate to most of those arguments, even as I say it's probably worth the cost as long as a few good things come out of it [click here to see my argument].

What I don't get is the tactic some of Obamacare's opponents have now taken against it.  It comes by way of a statutory challenge over the subsidies to lower income health insurance purchasers.  Apparently the text of the statute suggests that federal subsidies can be given only to people who buy insurance on state-implemented insurance exchanges.  In those states where the state government has declined to set up an exchange, and where the federal government therefore sets up its own exchange, the language of the statute suggests subsidies cannot be given.The challenge might succeed, and as Megan McArdle says, success would mean crippling the ACA.

To be clear, the true blame for that outcome would go to the legislators who drafted the bill and the president who signed it into law.  As McArcle points out and as anyone who followed the issue knows, the law itself was a patchwork and its supporters wanted to revise it and iron out the rough parts.  They lacked the supermajority necessary because of Scott Brown's election to the Senate.  So they had to force the text of the bill through a "reconciliation" process that admitted of no amendments or much debate that might very well have clarified such sticky points as the subsidy question.  At the time, one could hear some supporters say something to the effect of, "let's let it pass and then we'll see what's in it."

So if we presume that Obamacare is bad and that it's indisputably better to destroy this bad thing and leave in place whatever is left over, then challenging the subsidy provision is as a good a tactic as any.

However, I question the priorities of those who are leading this charge.  The practical, short term effect of a successful challenge won't really be to overturn the law or to make things better.  It will be to strike at the most vulnerable people, the poorer people who need the subsidies to buy the insurance.  And keep in mind that the states with federal exchanges are more likely to be states that have opted not to participate in the Medicaid expansion.

I suppose that someone playing the long game would say that striking down subsidies for federal exchanges would increase dissatisfaction with the law, dissuade otherwise healthy younger persons from getting insurance, and thereby lead to the law's repeal, perhaps replacing it with the status quo ante or with something better.  Another goal I can imagine is to encourage insurance companies to offer cheaper rates, based on the argument that subsidizing the customer is actually subsidizing the entity from which the customer purchases the insurance.  But it seems like a low blow.  And the most likely effect in my opinion will be to keep the law in place and reduce poorer customers' access to insurance.

According to McArdle's article, Jonathan Adler is one of the "architects" of this strategy.  Adler used to write, and for all I know still does write, for the Volokh Conspiracy (I haven't read that blog for quite a while).  He is, I understand, a "libertarian" legal scholar, and therefore objects to Obamacare in principle.  And while he is not all libertarians and the definition of libertarianism does not begin and end with him, his choice to adopt this tactic plays into my decision not to identify myself as a libertarian.  It is one thing to hold a principled objection to the insurance mandate and to the likely perverse incentives created by a law.  It's quite another to take aim at the least affluent people.  It's still another thing to take identify oneself with the side that either cheers this tactic on or stands by politely as some of the most vulnerable people are targeted.

I admit that that is ultimately an irrelevant reason to disavow libertarianism.  The tribal signalling and wars of position do not strike at the heart of what I take libertarianism to be about, which is respect for individual autonomy and a struggle to expand choices available for people.  And I know some libertarians who probably despise the law and are ambivalent about social welfare provision in general, but who nevertheless suggest we focus on more egregious violations of liberty, like targeted assassinations and mass incarceration.  And I can, albeit reluctantly, see a rationale behind this attack-the-subsidy tactic beyond the desire to buttress the cv's of a coterie of tenured radicals who whatever the justness of their cause seem to take a lot of joy in deconstructing well-meaning if very flawed policy.  But I do question the priorities of someone who does so and of the team to which that person belongs.

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