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ObamaCare, the "market state," and nudge theory

[Incidentally, I think FaceBook just banned me for saying Fuck. Carry on, FaceBook!]

Hasty post, as I must fly. Three bits from ScotusBlog that I would like to expand on briefly.

First, here's the reasoning:

Essentially, a majority of the Court has accepted the Administration's backup argument that, as Roberts put it, "the mandate can be regarded as establishing a condition -- not owning health insurance -- that triggers a tax -- the required payment to IRS." Actually, this was the Administration's second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

Second, here are the implications for the role of the State as we have understood it from the New Deal onward; what Phillip Bobbitt would call a change a Constitutional Order:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws.

Third, here is the new Constitutional Order:

Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition.

Chancy or not -- and it will be the precariat that suffers mischance, and not the elite, in any case -- that's what they're going to do.

Bobbitt defines the "market state" here (quote from The Shield of Achilles):

Whereas the nation-state, with its mass free public education, universal franchise, and social security policies, promised to guarantee the welfare of the nation, the market-state promises instead to maximize the opportunity of the [some] people and thus tends to privatize many state activities and to make voting and representative government less influential and more responsive to the market.

Using the tax code to optimize rental extraction -- in this case, by health insurance companies -- is the very essence of Cass, Sunstein et al's. Nudge Theory (via). And even if the Hobson's choice between paying the health insurance weasels and paying the IRS is more like a shove than a nudge, it's not a solution that the nation-state, as Bobbitt defines it, would adopt. But it is a solution the market state would adopt. After all, you have a choice!

Oh, and all the yammering from career "progressives" about how ObamaCare is a step towards a greater reform, or even single payer/Medicare for All, obscures the central issue: The change in the constitutional order. That's their job, of course; no harm done if you take no account of their policy decoys.

Gotta go, but FWIW that's my take.

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DCblogger's picture
Submitted by DCblogger on

https://twitter.com/davidcnswanson/status/218370547669667842

Submitted by lambert on

Oh, wait...

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

jumpjet's picture
Submitted by jumpjet on

I still think the United States can achieve universal health care, but I wonder if this ruling doesn't strike the death blow for any attempt to get a single-payer system.

It almost seems more likely that, if we get universal health care, we'll end up with a multipayer system like France's or Germany's.

Life, Liberty, and the Pursuit of Happiness

DCblogger's picture
Submitted by DCblogger on

but only as part of a large group of sweeping reforms, which is likely to be driven by debt forgiveness and some sort of housing solution. The economic meltdown continues and neither party is interested. Either by 2016 or 2020 we will be ready to elect a non-legacy party radical as President and then we will get real action, no just on the health care front.

DCblogger's picture
Submitted by DCblogger on

we can win single payer, in the states, and Vermont is the battle ground state for that.

Submitted by cg.eye on

Since the Republicans cooked up the individual mandate in the first place, then pushed the O.W. to look as if they were against it, to prevent adoption of anything more sensible and comprehensive (i.e. single-payer or true universal healthcare), if the SC ruled against it, they're happy. However, even a partial victory chips away at the premise that the government will ever make any social change as sweeping as Social Security or Medicare again.

Yes, single-payer will have to happen state by state, but due to C.U.N.- I don't believe in giving Citizen United the dignity of not remembering how they began as a misogynist slur -- big anonymous money can drive those initiatives to dust as surely as they just screwed Montana. Whatever good solutions one state's legislature can cook up, it can be destroyed by the next election cycle. It is as bad as it is, and even with this, um, victory, there's still the chasm between now and 2014, for every other provision of the ACA to be challenged and torn apart. Fun for lobbyists, their legislator flunkies and their families in make-work jobs!

a little night musing's picture
Submitted by a little night ... on

and Medicare?

See this comment at Naked Capitalism:

Last summer, Ezra Klein indicated that the long-term goal of the ACA is to “eventually migrate Medicaid and Medicare into the [ACA] system“.

If Republicans can make their peace with the Affordable Care Act and help figure out how to make the Affordable Care Act’s exchanges work to control costs and improve quality, it’d be natural to eventually migrate Medicaid and Medicare into the system. Liberals would like that because it’d mean better care for Medicaid beneficiaries and less fragmentation in the health-care system. Conservatives would like it because it’d break the two largest single-payer health-care systems in America and turn their beneficiaries into consumers.

[…]

So Bachmann is perhaps right to say that the president is moving us towards a day when ObamaCare – or, to put it more neutrally, “premium support” – might come to Medicare. He’s seeing whether it works in the private health-care market first and, if it does, there’s little doubt that the political pressure to extend it to other groups will be intense. The question is why Bachmann and her party are doing so much to stand in his way?

Liberals, by embracing the ACA, have embraced making citizens into consumers and turning the nation=state into a market state.

We can't afford not to have Improved and Enhanced Medicare For All!!

par4's picture
Submitted by par4 on

a "liberal" and you will find a Fascist. I'm flabbergasted when liberals cheer about this coercive legislation and then turn around and claim they are "of the Left".

par4

shargash's picture
Submitted by shargash on

authoritarian. And yes, I think if you scratch most Americans of any political stripe, you'll find an authoritarian. Otherwise, why is there not more outrage about police militarization? Why is the military so beloved? Why do we cheer when The Leader snuffs people without due process of law? Why do we tolerate the endless government invasions of privacy?

So, I agree that the "liberal" cheering for the mandate is pretty disgusting. Of course, the "conservatives" bloviating against it now were for it when the Heritage Foundation came up with the idea, and they were for it when Romney implemented it in Massachusetts. They're just against it now that the islamocommiefascist usurper is for it.

Scratch most Americans of any political stripe, and you'll find a partisan fuckwit.

Submitted by ubetchaiam on

"Scratch most Americans of any political stripe, and you'll find a partisan fuckwit."; too funny and mostly true.

jest's picture
Submitted by jest on

This is apropos also

Democrats cheer.
Republicans throw a hissy fit.

The rest of us sit and watch in mass confusion as Dems cheer a shitty Republican policy and Republicans get what they wanted and cry about it.

Me? I'm on my roof with my thumb out waiting for the first ride off this rock.

letsgetitdone's picture
Submitted by letsgetitdone on

legislation. Not me. Most of us here are either Medicare for All people or National Health System people. We think this law is a distraction and will allow many, many thousands of people to continue to die due to lack of insurance. Please see my earlier post.

letsgetitdone's picture
Submitted by letsgetitdone on

real liberals as opposed to most of the faux types in Congress now, aren't the ones trying to repress the vote. They're not the ones supporting laws to hold people indefinitely without trials. They're not the people supporting "corporate personhood" and the consequent ability of corporations to buy elections. They're not the ones supporting the constant violations of privacy by Government snoops practicing domestic spying in the name of "terrorism."

So, please don't talk about liberals and fascism in the same breath to me. Nancy Pelosi isn't a "liberal." She's a fraud who sold out a long time ago.

letsgetitdone's picture
Submitted by letsgetitdone on

in its most basic form; just expanding eligibility to everyone, rather than enriching the program as HR 676 does is very, very easy. It requires only reconciliation and changing the two words "65 or over" in the act. Democrats or a new third party can do that with a simple majority in both Houses. But Obama will never do that, so the Ds will never do it until he's gone. So, let's elect people who will unequivocally support Medicare for All, D or Green, and only such people, and let's keep critiquing the horrible PPACA. Then, perhaps, by 2017, we may be in a position to get what we want.

Also, how many times do people who favor Medicare for All have to learn the lesson that "single-payer" is bad framing; most voters don't know what it means and Republicans can easily demonize it. They can't demonize Medicare for All, because of the familiarity everyone has with it. I've been saying this for three years now, and I thought I was getting somewhere on the messaging. But as soon as people began to expect that the SC might overturn the law people in Congress started talking about "single-payer" again. Are these people messaging morons? The Rs say, we're for a "free market" solution, and our D congresspeople say, we're for "single-payer"? What is that except political malpractice fostered by too many years in the damned Congress.

Submitted by cg.eye on

no?

And as soon as we fully adopt Medicare for All as the slogan, the right will find 20.000 elderly Medicare scammers to make their point.

They will demonize us no matter what we say, so the best solution is to stop being afraid of them.

letsgetitdone's picture
Submitted by letsgetitdone on

since the Summer of 2009. That doesn't work. So, I may as well identify them as the morons that they are.

Also, I'm not worried about the right identifying 20,000 scammers. The reason is that the senior tea partiers who are many within the movement, love their Medicare. They won't be able to make it unpopular using their usual tactics and they won't be able to get the tea partiers out there to oppose its expansion.

Finally, I'm not afraid of their demonizing us; but the Ds are, and that's why they wouldn't try to pass Medicare for All which they could have done easily under reconciliation. They were afraid they would be accused of "socialism." But, that wouldn't of stuck because everyone knows that Medicare isn't socialism. After all they see private practitioners under Medicare don't they? And they also like Medicare, don't they/ So, how can it be socialist?

Submitted by ubetchaiam on

You did see Grijalva's comments about 'single payer' after the judgement was announced?

Submitted by ubetchaiam on

"WASHINGTON -- Rep. Raul Grijalva (D-Ariz.) said Thursday that the Supreme Court's decision to uphold the constitutionality of President Barack Obama's health care law means progressive lawmakers won't be pushing for a single-payer option anymore, though the concept will live on in their minds.

The idea of a single-payer option, such as a Medicare-for-all approach to health care, will continue to be "a fundamental political point that we all support," said Grijalva, co-chairman of the Congressional Progressive Caucus. "But the reality of what just happened today probably puts the emphasis on making the law work as opposed to trying to get a new plan."

Submitted by lambert on

How long was it, 24 hours?

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

Submitted by ubetchaiam on

Grijalva was putting this crap -"though the concept will live on in their minds."- out less than 2 hours after the decision was announced.

Submitted by ubetchaiam on

First, the House defeated a bill to increase funding for the IRS to get more tax collections going.
Second, the IRS has problems NOW with getting 'tax cheats' and the probabilities of millions more 'cheating' by not paying the 'tax' Roberts cited for passing the mandate isn't going to make things better.
Third, just as the Euro was a failed idea from the start, so is Obamacare as it's focus was ensuring the profitability of the private health insurance industry. That's a premise that simply can't fulfill the issue of healthcare for all(well,at least most of those 2 out of 10 that aren't already covered) while reducing healthcare expenditures.
Fourth, "What if your failure to obtain health insurance means you owe the penalty but you nonetheless refuse to pay it? That’s where things get tricky. The IRS can’t throw you in jail, because the health reform law explicitly states (on Page 336): “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.”

Nor can the IRS seize your property, because the law states (also on Page 336) that the health and human services secretary may not “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty … or levy on any such property with respect to such failure.”

Which means that people will not be using their lack of deductions as a kind of forced savings which will mean less cash flow to the Treasury during the year which will mean......

As towards "Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition. " lets not forget the preamble to the Constitution where "to promote the general welfare" is enshrined. Chancy maybe but it's really more tied to ending the two party entrenched system.

Submitted by ubetchaiam on

When was your anointment? :bigsmile:

Submitted by lambert on

In sparing Obamacare's fall
The SCOTUS could not have proved brainier:
Soon we'll have Medicare For all.
And I am the Queen of Romania.

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

ralphbon's picture
Submitted by ralphbon on

...Dorothy Parker's original meter.

(But I neglect to steal her last line verbatim. So the thing should have read:

In sparing Obamacare from a great fall
The SCOTUS could not have proved brainier:
They’ve hastened the day Medicare comes to all.
And I am Marie of Roumania.)