Obamacare and the Task of Responsible Opposition, Pt. 3: How Bad is it?

 (See Pt. 1 here, Pt. 2 here)

Now, all of the preceding has one huge asterisk attached to it; everything I have argued holds if and only if Obamacare falls within the normal spectrum of good, mediocre, and bad law.  Now don’t get me wrong; my own view is that it falls very decidedly on the “bad law” end of the spectrum, in a whole host of ways.  But America has seen a lot of very bad laws—Patriot Act, anyone?—that have not warranted, or have certainly not evoked, this kind of response.  If the Right is not going to be hypocritical, they have to show why this is different and unique.  If in fact it is an abomination before God or against man, an attack on the body politic, a form of tyranny or gross injustice, or sure to do incalculable harm to the common good, well then, we may be in a state of justified exception to the principles I articulated above. Hooker after all says, “Not that I judge it a thing allowable for men to observe those laws which in their hearts they are steadfastly persuaded to be against the law of God”; obviously there comes a point at which “it’s the law of the land” should not be sufficient in itself to compel obedience.  If, for instance, to pick an issue of particular concern to conservatives, Congress were to pass a law requiring that all doctors without exception must perform abortions on demand, civil disobedience on the part of doctors would be the only acceptable option, and ferocious opposition by legislators might be in order.  In cases such as this, we would celebrate the many checks and balances in our constitutional system, and seek to use whichever ones we could to obstruct the implementation of such an unjust law.  But is the Affordable Care Act, as such, of this nature?

Some might say that the required abortion example is not all that far from the truth, given the imposition of contraceptive-funding insurance plans on religious institutions as part of the healthcare overhaul.  However, we must beware of false equivalence. Being required to indirectly support unjust actions with part of one’s money is problematic, but quite different from directly engaging in such actions—and indeed, such far material cooperation in evil is inescapable in a diverse and sinful body politic.  In any case, though, the problem here is that conservatives could, I am convinced, have had much greater success in opposing these particular injustices of the healthcare legislation, on issues such as abortion and contraception, if they had not been so intent on opposing it root-and-branch.  The question before us is not whether some aspects of the legislation are unjust and harmful—if so, why have we not been debating those particular aspects?—but whether the legislation as such is irredeemably reprobate.

Part of the difficulty with assessing the claims for the evil of Obamacare is that they are so various and contradictory.  We are told that the very notion of publicly-funded healthcare is an unacceptable transgression of freedom, an act of tyranny in se.  The “individual mandate” is particularly singled out, as an example of the government forcing a citizen to make a purchase—once the door is opened to such logic, where will the tyranny end?  Of course, again I am skeptical that, if we look at other developed nations, we find that such policies have led rapidly and inexorably toward anything resembling the normal definition of “tyranny,” but I’m sympathetic to the logic here.  As was the Supreme Court.  John Roberts very rightly and wisely resisted the notion of government-mandated purchases, and reconstrued the individual mandate as a redistributive tax.  Many conservatives want to argue that the very notion of a redistributive tax is a reprehensible violation of individual freedom, but such logic can only be sustained on the most libertarian of premises, and if applied consistently, would render invalid the vast majority of the functions of government (as I have argued frequently before—see for instance here).

Some will also tell us that the notion of “socialized healthcare” is part of a liberal ploy to reduce us all to a state of slavish dependency, a “bread and circuses” policy to tame and enervate the body politic so that the liberals can go ahead with their evil agenda to…well, what exactly?  Indoctrinate us with godlessness?  Consolidate power into a sort of oligarchic dictatorship?  Plunder the wealth of the nation for their own ends?  The rhetoric here runs in many different directions, all of them a bit sensationalistic.  It’s not clear, moreover, whether the claim is being made for any form of socialized healthcare in any time or place, or for the particular agenda we have before us now in America.  I have seen the former claim made, and it is flatly unhistorical.  The Protestant Reformers were all for government-sponsored healthcare for the needy, as part of their attempt to reconstruct a godly society in obedience to Christ.  Many Christian statesmen in the 19th and 20th centuries likewise took  obedience to Christ as their motive for social welfare policies.  (It’s another question, of course, whether their theological reasoning was correct or not, but the point remains that clearly state welfare, as an agenda, can stem from a wide array of motives, many of them eminently laudable.)  As for the latter claim, that the campaign for universal healthcare in America today is wed to otherwise unsavory, soft-totalitarian, and anti-Christian agenda,  I’m not actually going to deny that there may be an element of truth in these worries.  But it’s worth recognizing that to to the extent that such worries are true, they will often turn out to be self-fulfilling prophecies.  If conservatives and Christians stepped up to the table and made healthcare reform and care for the needy a priority, rather than boycotting the process, then such legislation would have an entirely different ethos.

Others will argue, in more mundane fashion, that Obamacare is simply going to be bad for doctors, bad for hospitals, bad for individual patients, bad for jobs, bad for the economy, and just plain bad for the nation.  It creates perverse incentives, it ends up being a handout to the pharmaceutical and insurance industry (not a complaint often voiced by the Right, incidentally), it will be inefficient and create a messy bureaucracy, it will be expensive to implement and will have unforeseen consequences on the health industry and the job market as a whole.  The worries that may be voiced in this regard are of course too numerous and various to list, and they will differ largely from one commentator to another.  But it’s important to point out something absolutely crucial about these worries: they are categorically different from the objections just canvassed above; they are pragmatic, not principled, a posteriori rather than a priori.  And indeed, resting the case on these objections is a tacit admission that the earlier ones have been abandoned.  Think about it.  If it’s genuinely true that Obamacare is an unconstitutional trampling on God-given American liberties, then it really doesn’t matter if it will create a million jobs or destroy a million jobs; it must be opposed root-and-branch all the same.  There’s no reason to argue about practical bad effects if the real evil of the law lies upstream from these consequences.  Moreover, if it’s to empirical consequences that you appeal, then it’s to empirical data that you must go.

That is to say, if we’re going to carry out the debate about the Affordable Care Act on the ground of its good and bad consequences, then it is incumbent upon us to engage in a real serious consideration and debate over the data, rather than simply asserting as an a priori conviction that “it’s going to destroy America.”  This requires an open mind, a willingness to listen to voices on both sides, a readiness to rely on the testimony of relatively independent experts (economists, regulatory bodies, and those in the health industry particularly), and a preparedness to revise one’s judgments in light of these findings.  Incidentally, it also means, as I mentioned in my first post, that we will probably need to wait until the law has already been implemented to form a good sense of its practical goods or evils.  Such a debate, moreover, will be very unlikely to yield the kind of unambiguous, categorical condemnations that conservatives have heaped on Obamacare, and that are necessary to justify their unprecedented obstructionism; it will yield, rather, conclusions that can only be stated as probabilities, with some room for disagreement.  Again, Hooker:

“Be it that there are some reasons inducing you to think hardly of our laws—that you deem that loss of freedom, increase of expense, and manifold injustices will be the result of these policies. Are those reasons demonstrative, are they necessary, or but mere probabilities only? An argument necessary and demonstrative is such, as being proposed unto any man and understood, the mind cannot choose but inwardly assent. Any one such reason dischargeth, I grant, the conscience, and setteth it at full liberty. . . . But if the skilfullest amongst you can shew that all the books ye have hitherto written be able to afford any one argument of this nature, let the instance be given.”

Moreover, if the debate takes place on the ground of practical consequences, then it is likely that we will have to consider the law more in terms of its constituent parts, rather than an abstract whole.  Parts of the law will probably turn out to work reasonably well; other parts (and I would not be surprised to find most parts) will turn out to work very poorly.  Paying attention to which is which will put us in a much better position to enact concrete reforms in the future.  It will also increase the likelihood that we can make common cause on such reforms with political adversaries.

As long as we continue to treat this very complex legislation as one big ugly undifferentiated abomination, for reasons never clearly agreed upon or explained, we in fact make it almost impossible to negotiate with its supporters and achieve any meaningful reforms.

In none of this should you suppose that I have a rosy-spectacled view of Obama, the Democrats, or Washington in general.  In fact, I suspect that my concerns about the deep structural flaws and corruptions in the American political and economic system go much deeper than those of most of my friends.  But if we believe that there’s still any point in engaging in politics, and in seeking to govern a country faithfully, then we must re-learn the difference between persuasion and coercion, between politics and civil war; we must re-commit ourselves to the arduous and patience discipline of deliberation, and to learning how to live with disagreement, at least so long as we wish to continue to consider ourselves members of this body politic we call the United States of America.  Indeed, we must re-learn the relationship between prudence and principle—as Ross Douthat, one of the most consistently-reliable commentators throughout this stalemate, concluded today, “all the good ideas and sound impulses in the world don’t matter if you decide to fight on ground where you simply cannot win.”

4 thoughts on “Obamacare and the Task of Responsible Opposition, Pt. 3: How Bad is it?

  1. Brian Marr

    I almost want to believe you Brad, but one point still irks me. In an earlier discussion, Jess said (and I can’t find the your response),

    "In the individual mandate, Congress (acting in their representative capacity for the people) passed a penalty for failing to obtain health insurance. Congress figured that it could enforce this penalty under its commerce clause powers. All the public debate said ‘Congress can do anything under the Commerce power’ and this penalty would be included. In his decision, Justice Roberts re-wrote the law and changed the penalty (which Congress passed) to be a ‘tax’ (which Congress didn’t pass). I would submit that this is not an insignificant change. Given the narrow margin in the house (220-215 I think) by which this law was passed, it is highly likely that the individual mandate would never has passed Congress if Congress had identified it as a ‘tax’ at that time. The people would not have stood for that. So, it is apparent that Justice Roberts amended legislation and then ruled that the legislation, as amended, was constitutional."

    Given that, the issue doesn’t seem that the Tea Party folk are unwilling to take the American government’s decisive YES to healthcare, but they feel cheated–a massive, hastily put-together bill got pushed over them so fast no real deliberation could take place. In fact, the bill was so hasty that, as written, it wasn’t constitutional and needed to be adjusted by the Supreme Court. A regrettable situation, but given that the Democrats and Supreme Court changed the law after it passed by a narrow majority, the Republican move doesn’t seem that radical. I don’t like the rhetoric, but, actually, aren’t the Democrats and Supreme Court disrespecting the law?


    • Brad Littlejohn

      Thanks, Brian. A worthy rejoinder, but it falls short, I think, for at least four reasons:(1) This is hardly the first time that the Supreme Court has reinterpreted the Constitutional basis for a law, upholding it, but on somewhat different grounds than originally conceived. That may seem "undemocratic," allowing an unelected committee of nine to adjust legislation after the fact, but that’s how the system has always worked, and I’m inclined to consider that privilege one of our better checks and balances, however frustrating it may sometimes be.(2) Regarding the individual mandate, the Supreme Court did not really materially "adjust" the law. They simply changed the terminology. It wasn’t called a "tax" before, although functionally, that’s exactly what it was (as any intelligent legislator could have seen at the time), and Roberts said, "Come on, guys, let’s call it what it is."(3) It’s not as if loads of Republicans voted for the law who otherwise wouldn’t have when the language of "tax" was left out. To be sure, the language of "tax" was left out in an effort to secure Republican votes, but that failed in the event. Not a single Republican voted for it, as I recall. And I have trouble believing that if the language of tax had been used, any Democrats would have jumped ship. That being the case, it doesn’t seem like that 220-215 result would have been any different, even if the law was passed in the form that Roberts subsequently upheld it. (4) Without exonerating the Democrats for their tactics, the reason the law was hastily-put-together, dubiously passed, and studiously avoided the language of "tax" that Roberts put back into it, was that the Republicans simply refused to play ball throughout the whole process. I know there are probably different narratives of how all that played out, but my sense is that the Republicans basically decided that they weren’t going to support anything the administration put forward, weren’t going to try to achieve any kind of compromise that could command a substantial majority, and then went and blamed the other side for passing messy legislation with a razor-thin majority.


  2. Kent Will


    Overall I greatly appreciated this series, especially the calm (nay, judicious) tone you brought to an otherwise heated debate. Since you wrote partially in response to my objections, here are a few brief replies to each installment. As I mentioned earlier, I haven’t been following the machinations of this controversy with any kind of close attention, so I will try to stay away from arguing shutdown details and stick to a few larger points.

    Installment I:

    My original concern was to argue that the House defunding tactic was a) in keeping with its intended design, b) well attested to by precedent, and thus, c) not by itself a sufficient basis for declaring it injurious to our political and social health.

    You seem to grant a) and b), but still challenge c) on rhetorical, rather than legal or historical grounds.

    Taken as a general assessment of the state of American politics, I am pretty much in agreement with your rhetorical critique: indeed, decrying the polarization of politics has long been a staple of conservative jeremiads, though they have typically judged it a symptom of the more fundamental problem of our "culture wars", while you suggest it could be solved by an attitude adjustment, mostly on the part of the Republicans.

    However, in spite of your move toward a rhetorical critique, you still seem to be focusing on alleged constitutional or procedural problems; for instance in your line: "the Right has seemingly hoped that by acting as if the law had not been passed, it could make this charade into reality."

    Yet you also granted that "to campaign for repeal or delayed implementation would in principle be legitimate." Since that is what the House has been doing, how are they "acting as if the law had not been passed"?

    Again, toward the end, you say, "To enter into negotiations with the Republicans on the terms of the original ultimatum, at least, would be tantamount to granting a portion of the body politic the right to pick and choose which laws to accept as binding; the law having at this point passed every Constitutional barrier, any subsequent negotiations must take place within the context of mutual acceptance of the framework of existing law."

    Again, it does not appear to me, though I could be mistaken, that the Republicans are "picking and choosing" which laws to obey. You’re making a procedural charge, not a rhetorical one, but you have already admitted their tactic is procedurally legitimate.

    On another note, in passing, I think you may be a bit idealistic to say it would be easier to reform a law that has been on the books for a few years, than to block it before it goes into effect. From Clinton-era gun bans to Bush-era tax cuts, I’m really not aware of a controversial piece of legislation that has been repealed or reformed during its effective lifetime through some orderly process of deliberation and examination, even when the opposing party has held a congressional majority. I daresay that is the case precisely owing to the PR-related distortion of the deliberative process you called out in your second installment. Speaking of which…

    Installment II:

    I’ll leave aside the issue of the debt ceiling, because I understand little about either its financial ramifications or how it’s being employed in the shutdown controversy.

    It seems to me that political science is always struggling to balance the twin needs for deliberation and efficiency, with some level of messiness being accepted as the worthwhile cost of being represented in your government.

    Thus, I doubt that the regulatory chaos we face today is so much the result of parliamentary give-and-take, as it is a consequence of the radicalizing of politics that you have identified in this series. A group of representatives differing (even heatedly) in details of policy, but united in the broad goals of government, will much more likely produce a body of law that, while complicated, is nevertheless tolerable because of its basic unity. Your line of argument that says maximum liberty comes from maximum consensus does logically, I believe, end in some form of monocracy, whether or not you would push it that far yourself.

    Installment III:

    As you said, all of your foregoing analysis is moot if the law makes untenable demands on our consciences. You also mentioned the part of Obamacare that requires employers to fund abortions through their mandated healthcare coverage.

    If I understand your position correctly, you believe the provision of health care of some sort is a moral good on the part of those in authority (whether corporations or civil bodies); at the very least, then wouldn’t you hold to a "near material cooperation" if not a formal cooperation, between the provider and the beneficiary? Wouldn’t that same level of cooperation extend to the concrete provisions of the healthcare? I could be missing some distinctions here, so feel free to correct me.


    • Brad Littlejohn

      Thanks for the interaction, Kent.I think part of the problem here is your divorce of the shutdown issue from the debt-ceiling issue. This was part of the problem with the earlier discussion, owing partly to my own lack of clarity, though you now say that you don’t really understand what’s up with the debt ceiling, and so are leaving that issue to the side. In practice, the threat of shutdown took place against the backdrop of the threat not to raise the debt-ceiling; the two issues have been closely linked from the beginning, and are now thoroughly wrapped up together. And this changes the tone of things dramatically, because the stakes are so much higher, and the precedent so much less. While there have been tense budget negotiations that took place against the backdrop of a debt-ceiling raise, a blunt "Give us what we want or we pull the plug" by an overall minority party, which is what we have witnessed these past couple weeks, does seem to be pretty unprecedented, and in any case, thoroughly irresponsible.

      So here’s where the rhetoric really does start to make a difference. For to say, "We’d rather shut everything down and have the country default on its obligations than accept this law; we’ll suspend law and order generally to avoid obeying this law" is essentially saying, "We refuse to recognize that this law, or the government that has passed it, has any authority over us." Yes, the procedure of negotiating for a repeal or delay of the law is in principle legitimate, but it matters very much what the context of the negotiations and the posture of the negotiators are. A plaintiff who fails to get the verdict they want may certainly come back to court to lodge an orderly appeal if they believe that key evidence has not been taken into account. But the plaintiff who says to the jury, "Oh yeah? Well how about I just burn this courthouse down until you reverse the verdict" is not one who is recognizing the authority of the law. And rhetorically, that seems to be what much of the Right has done in this situation.

      *Regarding Installment II, I would just say that I did not ever say that maximum liberty comes from maximum consensus. I just said that maximum disagreement tends to undermine liberty. It does not follow from that that the inverse is true. There is some point in the middle which conduces to maximum liberty. Clearly, some responsible opposition is necessary to prevent any one agenda from simply having its way, no questions asked. But once this descends into a determined opposition to ever conceding anything the other side wants, then I would suggest this tends to result in a steady growth of bureaucracy and erosion of liberty, even if the opposition is contending for "limited government."

      *Regarding Installment III, hmmm…it seems to me that you’re equivocating on what it means to "provide healthcare." The way I see it, there are several steps of separation that ameliorate the participation in evil, if not removing it altogether. The most proximate evil is that of the patient who requests certain immoral procedures (though of course, in the case of abortions, the mother’s own fault may be qualified by her circumstances, or the guilt of others who are pressuring her to get the abortion) and that of the doctor who agrees to do the procedure (or perhaps even suggests it). The role of the doctor in such a case is that of formal cooperation in evil. An insurance company does not "provide health care" in the same sense as the doctor, of course; the insurance company agrees to pay the costs of whatever procedures the patient chooses to have done. Now, in this case, the insurance company is most likely engaged in "near material cooperation." Even if it helps make possible the procedure, the insurance company does not share the intention of the evildoers (which is the key test of formal cooperation)—it is not out to abort babies, just to make a profit and provide customers what they want, with a minimum of hassle. Of course, this doesn’t make it innocent—such a posture of willfully ignoring moral issues is reprehensibly callous (though it should be noted that an insurance provider could have better motives; it might deem that mothers desperate enough to get abortions might do so even if they didn’t get insurance coverage, and might in such cases resort to forms of abortion that greatly increased the risk to their own lives). But it is one step removed. Then, the company that provides the health insurance for its employees is usually another key step removed. In purchasing insurance for its employees, the company’s intention is quite simply to make sure their health needs are covered, and it is choosing what is the best, or most economical provider. The company is not necessarily making a specific decision to include abortion coverage; that may be purely incidental to their laudable goal of making sure their employees’ needs are covered. As such, the role of the employer (or the government) in this picture will probably be that of "proximate mediate material cooperation" (see this site for a more complex breakdown, with healthcare issues in mind, than simply formal vs. near material vs. far material: http://www.ascensionhealth.org/index.php?option=com_content&view=article&id=82:principles-of-formal-and-material-cooperation&Itemid=171). As such, it is not morally neutral, but it is not automatically unjustifiable, depending on other factors that must be weighed in the balance. One of those factors would be the constraints of a blunt law that insisted that all insurance options must include abortion coverage. The law in this case would be unjust, but I don’t think that the company that complied with its terms would necessarily itself share in the moral guilt. In other words, the law would be unjust but could be justly obeyed. And I think an awful lot of our current laws fall under that heading. The real problem for a Christian citizen comes when the law is so unjust that it makes it impossible for anyone to comply with it without themselves sharing in the evil (i.e., a law that required all doctors to perform abortions).

      I hope that’s helpful, though I recognize that these are awfully complex moral waters.


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