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.