Obamacare survives…to whose benefit?

As everyone currently awake knows, the Supreme Court has upheld the entire Patient Protection and Affordable Care Act (“Obamacare”). At first glance this is obviously a huge win for President Obama. His signature piece of legislation has stood up to constitutional muster and can continue being implemented. However, the ruling itself and the implications of it are much less clear, and may not be so terrible for several reasons:

Commerce Clause vs Tax Power

The government argued before the court that Congress had the power to implement the individual mandate to purchase health insurance, because the failure to carry health insurance affects the overall healthcare market and thus interstate commerce. This argument actually LOST in the court’s opinion. Chief Justice Roberts strongly rebuked the use of the Commerce Clause to expand the government’s power in this way. Instead, he said that Congress did have the power to levy the “penalty” for not carrying insurance as a tax. While this still allows the government to technically mandate things under its taxing power, it potentially allows the court to revisit more broad Commerce Clause cases in the future and reign it back in to what was intended.

Taxes Aren’t Popular, Are Easier to Repeal

The individual mandate is now a tax (or it’s unconstitutional). Taxes aren’t popular. President Obama ran for office saying he would never raise taxes on families making under $250,000 a year. That promise has already been broken, of course, with the tanning salon tax at the very least, but now it’s completely impossible to hold up. As we already know, Obamacare already raises taxes over a dozen different ways (most of which just haven’t kicked in yet). Now that the linchpin aspect of the bill is itself a massive tax, and a tax levied exclusively on the uninsured. That’s going to be much harder to sell now.

Taxes are also much easier to repeal. Normal bills in the US Senate are subject to minority filibuster, which requires 60 votes to override. However, tax bills (required to be originated in the House) cannot be filibustered. Even if the full bill could not be repealed with this kind of procedure, at the very least the mandate itself could be invalidated (as a tax cut?) with only 51 votes. All it would take to accomplish this is a Romney win and three new Republican senators in November (with ~23 Senate seats held by Democrats up for reelection this year, that’s a distinct possibility).

Re-inspired Opposition

In sports, you lose at the end of a match, and it’s over. In politics, you lose in the middle, and the match never ends. In this match, we’ve lost a big one, but it has motivated conservatives and libertarians like a win might not have done, and we get to hit back now. As of only five hours after the Supreme Court ruling, the Mitt Romney campaign and Victory Fund had received over 13,500 donations, totaling over $1.5 million, an average of just over $100 per contribution. There was no moneybomb, no advertised fundraising drive. People heard about the ruling and donated organically. Even people who have been strident critics of Romney as the Republican nominee have been motivated by this ruling to contribute. If we can keep that enthusiasm up for just four more months, there’s no way we’ll lose.

Don’t get me wrong. I think the ruling itself is terrible, potentially more terrible than the bill itself if the expansive tax power precedent can be abused in the future. But there are subtle and potential silver linings here that could make it all work out next year. I don’t think Chief Justice Roberts is cynical enough to have considered all these secondary consequences when making his game-changing vote, but I’ll take what I can get.

Stay calm and VOTE.



January 2, 2012 – Jake Tapper asks Rick Santorum about a 2006 statement about contraception.
January 7, 2012 – George Stephanopoulos asks GOP Presidential primary debate candidates their position on contraception.
January 20, 2012 – Obama administration announces national mandate that insurance plans cover contraception at no charge.

Gay Marriage:

May 7, 2012 – Washington Post reports gay donors aren’t enthusiastic about Obama and are reluctant to contribute to his campaign.
May 9, 2012 – Obama announces his support for gay marriage (at the state level).
May 10, 2012 – Washington Post reports huge donation surge to Obama from previously hesitant gay donors.

Illegal Immigration:

June 14, 2012 – Time cover story “We Are Americans” about illegal immigrants.
June 15, 2012 – Obama administration announces executive action to give temporary legal status to certain young illegal immigrants.


June 21, 2012 – Washington Post reports Romney’s former company, Bain Capital, did lots of offshoring.
June 24, 2012 – Obama campaign debuts new TV ads labeling Romney “Outsourcer-in-Chief”.

At what point does this pattern stop being a coincidence and become evidence of media-campaign collusion?

At the very least, it appears that President Obama is governing (read: campaigning through executive action) in reaction to media coverage. Shouldn’t it be the other way around?

Opposing Obamacare Doesn’t Make You Heartless

The Supreme Court has strung us along for weeks now. Their decision on the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) was made earlier this year, allegedly the day after the oral arguments were concluded, but their ruling and full opinion will not be announced until Thursday, June 28 at 10 am Eastern. There are already countless pieces published and many more being written in preparation for the ruling, either to temper expectations, to anticipate the policy consequences, or to massage the potential political fallout, especially for the Presidential election. This is not quite one of those, but it is an effort to dispel the notion that opponents of this particular legislation are greedy, radical libertarians who are ok with people dying in the streets.

Obamacare is a massive hulk of a bill. It took a year to work its way through Congress, was read by almost no one (at least in Congress) before passage, and it regulates everything from what kind of hospitals can exist to personal insurance coverage. There are innumerable ways to improve the healthcare system. This bill is one particular attempt at it, so opposition to this particular bill as a whole does not by extension imply that its opponents are either against improving healthcare, or even against certain specific provisions of this bill.

One false premise used in arguing for this type of reform is that we even have a national healthcare system at all. Before Obamacare, we did not. After it, if it survives the Court, we do. Health insurance has always been regulated by state insurance boards. With very few exceptions, care itself is also state-regulated. I don’t believe there are any states that simply do not have such oversight and regulation, so I fail to see why this had to be upgraded to a federal issue. We can clearly see that certain states have better performance on health issues than others, so why was the effort for reform instead not contained within those particular poorly performing states rather than subjecting everyone to the same one-size-fits-all standards? Vermont has an effectively universal healthcare system, Massachusetts has an individual mandate to own private insurance, Utah reformed its system significantly under Governor Huntsman, and there are states with very little regulation. Why doesn’t this work? Why does federalism (allowing states to decide) work for so many other things (car insurance, voting, education, employment, contracts, criminal law), but it can’t be allowed to work for healthcare?

Irony of ironies is that while Obamacare takes the regulation of health insurance to the national level, it doesn’t do the one thing that could improve the market for it, which is taking the sale of insurance to the national level. One reform that has been proposed by many for years is the ability to sell insurance across state lines. All this nationalization of insurance mandates and coverage, and they didn’t even bother to do the one thing that would actually produce a national market for health insurance and give their national regulation of it some legitimacy. They instead plan to setup state insurance exchanges (starting in 2014-what do the uninsured do until then, if it was such a national emergency?), with national regulation of them. An almost universally terrible idea.

A lot of the criticism of Obamacare comes down to the individual mandate. Quite simply, does Congress  have the authority to force every person in the country to purchase a product from a private company? The vast majority (72%) of the country says no. We’ll find out how many of the current Supreme Court justices agree on Thursday, which is all that really matters. But if the bill as a whole comes down to the individual mandate, this sweeping new power alone is reason enough to strike it down. There are ways to improve health and health insurance without an unconstitutional mandate that everyone buy something that costs thousands of dollars a year or face fines or jail.

So when you hear people say that opponents of Obamacare want people to die if they don’t have insurance, are social Darwinists, or don’t care about the “30 million uninsured”, don’t step in the trap. Opposition to one particular attempt at health care reform does not make one opposed to health care reform in general.

The Party of Liberty?

We libertarians already have our own party, but we are more often shoehorned into the Tea Party wing of the Republican Party (the shared standard of the Gadsden flag conflates the issue). But for years we have been marginalized and ignored by the same party that assumes our allegiance. Should we stop working with Republicans and unite behind the Libertarian Party? Should we give Democrats a chance? As libertarians we allow each individual to make that decision for himself, of course, but perhaps some guidance can be helpful.

Like its progressive and conservative next of kin, libertarianism is a diverse an ideology, with many internal disagreements about topics as fundamental as federalism, foreign policy, and abortion. So I’ll be making several assumptions about the general size of the tent for the sake of discussion.

We might begin (and for some, end) with the simple question: Why should there be any question about libertarian party identification when there is already an official Libertarian Party? With Gary Johnson, a popular two-term Republican governor of an overwhelming Democratic state, as the Libertarian Party nominee for President this year, and voter willingness to entertain third party options according to polls, it would seem like now is the best chance the LP has ever had to make a presence on the national stage. However, as fancifully ideological as most of us are, we’re also more realistic than that. Johnson polls in the single digits, as all third party candidates have since Ross Perot in 1992, would be lucky to get into the general election debates, and would almost certainly serve as nothing more than a spoiler to siphon votes from the Republican nominee, guaranteeing President Obama’s reelection. The Presidential election is not the only one that matters, of course, but with no prominent Libertarian Party candidates likely to be competitive in any other races, what real hope is there to make an impact? If libertarians abandon the two major parties and consistently lose races to them, our voice is silenced altogether. So to be frank, we’re stuck with Republicans vs Democrats. Where to turn?

As a starting point, one can assume libertarians agree with each major party on a large segment of  issues, most commonly referred to as social vs fiscal issues. We agree more closely with Republicans on economic and fiscal issues, while we agree with Democrats generally on social issues. Therefore one might expect to find relative numbers of libertarians in each party, with individuals preferring the party that matches the issues on which they are most strongly aligned.  A 2008 study found that about 70% of self-identified libertarians polled had voted for Republican candidates in the House, Senate, and Presidential elections that year. Therefore most libertarians seem to have settled already, at least tenuously, on the GOP. This could be because there are far more fiscal issues than social ones, or at least more relevant ones, tilting the balance to the GOP’s favor. Is this a viable alliance, or should we keep looking?

Back to the issue split, we agree with Democrats on social issues and with Republicans on fiscal issues. Where are these issues likely to lead in the future? With debt, deficits, spending, and taxes as far as the eye can see under any mainstream candidate’s proposals, fiscal issues are going to be front and center for as long as any of us are likely to live. Social issues, however, are a trickier egg to crack, as they are quickly becoming purely generational issues. Poll respondents are increasingly split less by party and more by age on things like gay marriage and drug legalization. Huge majorities of young voters approve of gay marriage, for example, regardless of party affiliation. This could be actually due to libertarians’ already growing influence within the GOP, where there is more room for movement on those issues, or it could be a purely evolutionary phenomenon across the board. Either way it might be the perfect opportunity for libertarians to begin to exert more influence within a party rather than from the outside. If this trend holds (and it has been solidifying for about a decade now), the culture wars will become increasingly marginal, and a new pax libertine will form in their place. That would mean that the issues on which libertarians agree with Democrats are no longer relevant, and the only remaining issues of contention are fiscal ones, on which we disagree completely. It also creates an opportunity for libertarians and conservatives to unite around the core focus of the Republican Party, which is standing firm on the limited role of government to protect the rights of individuals and the states.

It seems to me that looking at the existing party alliances, the issues both now and in the future, and libertarian goals, the only real chance we have is to work within the Republican Party to affect change and promote true liberty in all arenas. It also doesn’t hurt that the Republican nominee, Mitt Romney, is (in)famously malleable, has at least in the past been more moderate on social issues, and is already cordial with libertarian standard-bearers like Ron and Rand Paul. There’s lots of room to work here, and we should take advantage of it. As Donald Rumsfeld said, “you go to war with the army you have, not the army you might want or wish to have at a later time.”