Fusionism

Interesting piece at Reason.com today by A. Barton Hinkle. The article is about how the Catholic Church, while it infuriates the Right and Left at different turns, marches to the beat of its own first principles and is not particularly motivated by partisan concerns. But what jumped out at me was this one specific passage, which I think gets to the heart of why the conservative--libertarian alliance stubbornly persists, much to the chagrin of lefties who can't fathom what freak-flag-flying libertarians are doing still hanging around with fundamentalist bible thumpers. After comparing the Left and Right's political reactions to 1) the Church's frustration with the HHS contraceptive mandate (delighted Right, horrified Left); and 2) the "Nuns on the bus" shaming of Romney for his alleged lack of empathy for poor people (delighted Left, horrified Right), Hinkle makes the following observation:

This is all the more odd when you look at what each group of Catholics was trying to achieve. Catholic institutions that did not want to underwrite contraception for their employees were not forbidding those employees to use birth control. They clearly were not constricting the activity of non-employees. They were not trying to overturn the mandate for anyone else—and they certainly were not trying to outlaw the sale of contraception at the corner pharmacy. By contrast, the Nuns on the Bus and the bishops who objected to Ryan's budget proposals want the federal government's coercive taxing power to achieve their social-justice ends. They want the government to make other people underwrite programs that reflect their particular interpretation of the Gospel. That seems a far greater imposition of religious values on non-believers than a request simply to be left alone.

This, to me, gets to the heart of why liberals continue to miss the reason for the vibrancy of the de facto libertarian-conservative coalition. It's easy for libertarians to make common cause with--and empathize with--conservatives who want government to leave them alone. It's not so easy for them to to empathize with liberals who want to use the power of the state to coerce behavior. I'll admit that social conservatives often (wrongly in my view) try to use the power of the state to achieve ends that would be better pursued by civil society. However, when you go issue by issue, it's almost always the liberals that want leviathan to take up more and more of the oxygen that used to sustain our free society.

Obamacare Ruling

Of course I am disappointed by the decision, but I'm not surprised. I was predicting a 6-3 ruling upholding the mandate with Kennedy and Roberts in the majority. I had believed, like many, that if the conservative wing could not get Kennedy that Roberts would side with the liberal wing to "control" the opinion of the court, but never did I imagine that Kennedy would dissent while Roberts joined the liberals. That part makes it sting a little more, but honestly, I'm not shocked by the result. That said, there are a lot of silver linings, and here are some things I think that conservative-libertarians should keep in mind as we move forward: 1) There was a VERY fine distinction between the dissent and the majority opinion on the issue of the mandate. From the dissent: "The issue was not whether Congress had the power to frame the minimum coverage provision as a tax, but whether it did so." The fate of this decision rested on whether the mandate was a penalty or a tax, but how many of the dissenters would have joined the majority if it had been clear this was a tax? (we don't know for sure, because the dissenters do not address the issue of whether they would have upheld a non-insurance tax under Congress's taxing power, but it seems likely that at least one would have, given the breadth of that power in the court's jurisprudence). Given that, I think all the harrumph-ing about this case as establishing a broad new federal power is a little over-blown. I for one, don't much care whether Congress called the thing a penalty or a tax, because functionally, it amounts to the same thing. How, then, could we have seen it as a victory for freedom or limited government if the decision had said "sorry, it's a penalty, and hence you can't have it," when Congress could have done the same thing anyway simply by calling it a tax? Such a decision would have won the day, but would have left a clear road map for Congress reaching the exact same result via different means. Such a ruling would not have been a grand constitutional victory, but a narrow ruling striking this hideous bill, and leaving us just as exposed to Congress's massive tax power (as we have been for a century). 2) We did win on the Commerce Clause issue, which, while that probably feels like cold comfort now, is nevertheless important. I did NOT expect that result, and so see it as a silver lining. Don't forget that prior to US v. Lopez in the 1990s, most constitutional scholars had thought all commerce clause limitations were dead. Thanks to Lopez, Morrison, and now NFIB, there are at least some limits on Congress's authority to regulate commerce. But who cares, you ask, if Congress can squeeze in the back door with it's taxing authority? It matters because politically it is harder for Congress to pass a tax than to "regulate commerce." Indeed, one of the things that makes the decision today so galling is that it allowed the Democrats to garner the political benefits of "pretending" this wasn't a tax (which of course it was, which is one of the reasons I'm not as upset with Roberts as I suspect some of my peers are right now) to secure passage by the narrowest of margins while getting the benefit (in terms of constitutionality) of it being a tax. That's maddening, but understandable. The Court has a duty--which CJ Roberts clearly appreciates--to uphold statutes if they are constitutional under any fair reading. I happen to agree with the dissent that construing this "penalty" as a tax was a bit tortured, but, the silver lining is: going forward, Congress can't play that game again b/c of the clear precedent here. NEXT TIME, they will have to assert the proper basis for their jurisdiction. So the decision, while allowing the mandate, also shrinks the very hole which such legislation can be shoved through. And the other upshot of winning on the Commerce Clause issue.... 3) It's now clear, and judicially decreed, that this bill is a massive tax increase! (duh!). This is a political weapon for the GOP. I don't pretend to know how the politics will sugar out, and of course the Administration will spin this as a big win, BUT: the law is still unpopular, and now the GOP can say, with perfect justification, the SCOTUS peeled away the BS and laid bare for all what this law really is. A highly regressive TAX on Americans with no health insurance. Ouch. I think there is mileage to get out of this with voters. And finally, 4) Let's all remember that the ballot box is and always has been more important than the Courts in getting good policy. As CJ Roberts noted: "It is not our job to protect the people from the consequences of their political choices." Amen. It always amazes me that conservatives seem to fall into the trap of thinking the Court should strike down bad laws. Nonsense. We have a right to enact stupid laws. This one surely was one. There was a good argument that it was unconstitutional, but we lost that fight. Now let's push forward politically, rather than legally, on the far more salient point: constitutional or not, it's an economic basket case and we need a President and a Congress willing to gut it and start fresh.

The Mandate is Falling, the Mandate is Falling!

In yesterday's New York Times, an MIT Economist named Jonathan Gruber, who the Times has apparently nicknamed "Mr. Mandate," lamented the direction of the oral arguments re the Mandate provision in the Affordable Care Act. "'As soon as I started reading the dispatches my stomach started churning,' Mr. Gruber said of the arguments on Tuesday, while taking a break from quizzing his son for a biology test. 'Losing the mandate means continuing with our unfair individual insurance markets in a world where employer-based insurance is rapidly disappearing.'"

Really, Mr. Gruber? Let's assume for a moment that you're right, and that without an individual mandate, we are fated to a future where increasing numbers of Americans are left without access to employer-based insurance. Fine. But even if this is true, why is the sky falling if the individual mandate is beyond the power of the federal government to require? As Mitt Romney is no doubt tired of being reminded, Massachusetts has had an individual mandate in place for several years. Thus if Mr. Mandate is right and mandates are the only way out of this mess, then those pesky constitutional limits on congressional action need not mean our goose is cooked. Moreover, if the sky really does start to fall for lack of a mandate, while the sky is meanwhile staying put in the Bay State, then perhaps might other rational state legislatures adopt a mandate of their own? Hmm?

The subtext running through all this, of course, is that the states are too stupid or backwards or incompetent to accomplish this type of thing on their own. This is a horrifying development in our political life. The state governments are, by definition and design, closer to their constituents than is the federal behemoth. They can be quicker to act and in most cases will be more responsive.

If the SC knocks out the Mandate on the basis of its having exceeded Congress's Commerce Clause authority, that will effect Romneycare's mandate not one iota. Nor should it. The real question here is not, "can government do this" as it is framed almost everywhere, but "can the Federal government do this?" This distinction is critical, if for no other reason than it knocks the wind out of those that would focus on policy arguments rather than constitutional requirements (I'm looking at you Justices Kagan, Breyer, Ginsberg, and Sotomayor). Saying "you may not do this" has much more finality than does "you are not the proper party to do this."

What we are left with when we assume that states are helpless/hopeless without the feds doing all the public policy heavy lifting for them is world where the argument "but modern society requires this sort of regulation" gets more traction at the Supreme Court than the theoretically more appropriate "but the Constitution expressly forbids and/or does not permit Congress to do this" argument. This is not a good result for friends of Freedom and self-government. But it is, sadly, increasingly the world in which we live.

Of course, we do not believe the Mandate is the only way to fix healthcare, and indeed, think it ill-conceived both in practice and in principle. The point is only that this debate has highlighted the sad slide of our constitutional jurisprudence from robust constitutional analysis to super-legislature-policy-making. What the modern Court does--at least what the four liberal justices appear prepared to do--is not determine statutes' constitutionality, but rather their wisdom from a policy perspective. Good thing, then, that they have a wise latina among them.

HHS Mandate

One of the most obvious fault lines in the Fusionism coalition is along the so-called "social issues." Or so the conventional wisdom would have us believe. The recent dust up over the HHS Contraceptive Mandate and possible congressional action to curtail it is the fruit of the left's latest attempt to drive a wedge into this perceived fault line.

Superficially, of course, it would seem that this is an issue that would peel away libertarian-minded voters from the GOP. Contra that CW, below are Fusionim's thoughts on why libertarian and conservative values voters should be able to make common cause against the Obama Administration's proposed mandate:

It's Not 1960 Anymore

A favorite tactic of liberals is to resurrect the rallying cry of long-ago won political battles even when their relevance to the real issue at hand is tangential at best. In this case, that instinct manifests itself in a "hands off my birth control" sentiment. Indeed, if there was anything like an effort to roll back or restrict access to birth-control underway, it would be a sure loser for the GOP and the Fusionism Project. Happily, despite some ill-considered remarks by Rick Santorum (yet another reason that he cannot hope to become the Fusionism Candidate), the only person seriously considering such a policy reversal is the straw man in the left's collective imagination.

The real issue with the HHS mandate is religious liberty, despite misdirection campaigns on the left. In the 1960s, when crusading feminists sought to strike down prohibitions against non-married women having access to birth control, they could credibly claim the mantle of libertarianism. Today, however, the coercive power of the state is being used not to prevent women from buying birth control but to force Sister Alice and Father Daniel to pay for someone esle's birth control.

That distinction might not make a big difference to social conservatives who think birth control is always and everywhere a mortal sin, or to liberals who won't rest until every woman of child bearing age is made chemically infertile. For those folks, the battle lines are the same as they were over Griswold v. Connecticut four decades ago. But for the libertarian half of the Fusionism coalition, the fact that the Leviathan sits on the other side of the ledger this time around makes all the difference.

This is about controlling a private institution, not about financing birth control

To listen to the hysteria surrounding the congressional Republicans' proposal to remove the mandate by legislation, including Susan Fluke's surreal testimony before Congress, one could be excused for thinking that birth control is on the verge of becoming inaccessible for a generation of women. This could not be further from the truth. The issue is not access, but payment. Payment and access might conceivably be linked, if the costs for the procedure or medicine at issue were prohibitively expensive for the typical--or even the poorest--insured. Considering that, even according to Planned Parenthood, many forms of birth control (the pill being, obviously, only one of many options) cost as little as fifteen dollars per month and a quick google search indicates the cost may be as low as 9 dollars per month , so clearly, something else is going on. With all due respect to Sandra Fluke, even the grossly inflated estimate of $3,000 over three years for birth control is hardly an economic hardship of any significance. At $83 month--surely on the very high side of the actual cost to a would-be litigator practicing the sexual mores of Ally McBeal--most law students presumably pay more for cable and internet, let alone text books. Indeed, we think we spent more money on Jell-o and Lucky Charms when we were in law school. Certainly most law students spend at least this much on Tylenol from the headaches they get from attempting to wrap their minds around the various "penumbras" that "emanate" from seemingly benign constitutional clauses.

Although we frequently dislike questioning the sincerity of the motives proferred by our political opponents, in this case it is hard to conclude other than that our friends on the left relish the idea of forcing the Catholic Church into subsidizing behavior it finds morally objectionable. It is as though Big Brother were to require a parent, concerned for her son's health, to nevertheless purchase her son marijuana. That the son can find pot elsewhere rather easily and probably will even if it is against his mother's wishes reduces the rationale for such an arrangement to the brow-beating of the mother for her anti-drug stance. The example is cruel, but so is the reality with the mandate. The Church knows its flock and the members of the larger society can and will sin--but to force it to not only accept this reality but also assist in it is an act that can only be meant to inflict pain on the institution and it's mission.

Ultimately, this is about crushing dissent to the liberal status quo. Having essentially won the debate on birth control years ago, the sexual revolution rolls on, seeking not only to make the world safe for those who want birth control, but to make it impossible to object even privately to it's ascendancy.

And, even if we are wrong, and it really is the cost of birth control that motivates the Administration and its allies...

The addition of the HHS Mandate reveals a poor grasp of the basic concept of insurnace

Sandra Fluke testified that the cost of her birth control was a significant hardship on her and her law school peers and implicit in this testimony was the assertion that this hardship would have been mitigated if the Georgetown student plan had only covered birth control.

This starving law student story--apart from (rightfully) eliciting no sympathy from the typical American--is a very odd narrative to use to justify a public policy of larding up health plans with daily expenses. As a former law student ourselves (one who dined on tuna and dry cereal on alternating nights, mind you, the daily condom and spermicidal lubricant purchases leaving almost no room in the budget for food), we would argue that the starving law student is best served by an inexpensive policy. Said policy would be bare bones--it would probably cover only the absolute essentials and, even for what it did cover, it would probably have a high deductible--the higher the deductible the better, since the starving law student would be best served by a plan that had a low premium.

This POV is formulated out of the naive notion that insurance is about spreading risk, not about paying for daily expenses out of premiums rather than pocketbooks. The original notion of insurance went something like this: "A Bad Thing will almost certainly happen to a few of us, but we don't know who. We can spread that risk by all incurring a small cost (the premium) to create a pool of money for the unfortunate victim of said Bad Thing." The Susan Fluke plan, however, works something like this: " I have some known expenses (hence, no risk) that I incur because of lifestyle choices. I would prefer not to pay for these things with my own money, and therefore think people--even people who vehemently disagree with my lifestyle choices--should pay for it instead." I don't think I need to close the libertarian loop on that one. One suspects that when Susan Fluke next testifies before Congress it will be to explain why her auto insurance policy with GEICO should be forced to pay for getting the cigarette smell out of her upholstry. Pity those of us silly enough to think that the car insurance premiums we pay should only be covering the risk of unforeseeable accidents--we must now be prepared to shell out for that AND for foreseeable expenses incurred by those less prudent that us.

In sum, the HHS mandate is bad as insurance policy and worse still, it encroaches on religious liberty and freedom of conscience in an insidious way. Even if we take the proponents at their word on this one, the economic benefit from such a policy is so marginal as to be trivial. Leviathan is using this as an excuse to annex yet one more stronghold of our embattled and shrinking civil society. Libertarians--on the opposite side of conservatives in the original birth control battles--should have no trouble aligning with conservatives on this one.