The Volokh Conspiracy
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Gillespie Interviews Barnett on Originalism, Obamacare, and the Libertarian Movement
I encourage everyone to watch Nick Gillespie's cool interview with Randy Barnett. They touch on Randy's role in developing originalism, the challenge to Obamacare, and the future of the libertarian movement. I would also commend Randy's recent essay, fittingly titled "Libertarianism Updated." And if you haven't bought Randy's new book yet, you should. I'm sure he would be happy to sign it next time you see him.
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The Libertarianism Updated is an interesting essay.
I joined the LP back in 1977. At the time it was my understanding that libertarianism was a political theory, not a general theory of ethics, and thus didn't NEED to be complete. That it really had nothing to say about what people should do, once you'd ruled out infringing upon each other's rights. What should you do with those rights? It was agnostic about that.
But maybe a pure political theory without anything to say about what people should be doing simply isn't viable, failing to satisfy deep seated needs? You'll find a theory that tells you what you should be doing, and sooner or later it will displace libertarianism in the political realm?
His distinction between an "ideal" theory, and a theory of the second best, identifies a problem I see in Somin's writings. He seems to be applying ideal theory to a world with governments.
Before I waste time listening or reading about anyone's "challenge" to Obamacare, I want to know if they have a viable alternative.
And no, "tort reform" and "free market rhetoric" are not viable alternatives. Don't get sick and if you do die quickly is not a a solution either. Medicare-for-all is.
And the end of the day, the millions of people who can get health care because of the ACA where before they could not do not give a damn about legalistic/libertarian ideologies. And the insurance companies that are still making huge profits don't really care either.
It does maintain some market forces, even with the distorting constraint of mandates of coverage, primarily existing conditions.
Well, isn't that convenient: You ask if people have a viable alternative, but what you mean by "viable" is just, "Would I personally like it?" Whether or not anybody else might prefer it is irrelevant, only your opinion matters.
In the end of the day, the ACA was just an off budget entitlement program. Obama wanted a health care welfare program, but knew it would be insanely expensive, and didn't want it showing up on the budget where people would blame the taxes to pay for it on him.
So you got a regulatory program that ordered insurance companies to sell insurance below cost to Obama's intended beneficiaries. In order to do so they had to make everybody else's insurance worse and more expensive.
The idea being that the people whose insurance got worse and more expensive would blame the insurance companies, not the Democrats who caused it.
So, yeah, the ACA got a lot of people insurance who hadn't had it. It did so by making even more people's insurance much worse!
Pre-ACA, I got diagnosed with cancer. Two cancers, actually. My out of pocket? $6,000. The insurance company paid the cost of a nice house out to save my life.
Today, with much more expensive insurance, if the same thing happened, I'd end up bankrupt from the co-pays. Actually, I'd probably have to just accept that I was going to die, to avoid ruining my family's finances.
But you laser focus on the people who benefit, and ignore everybody who was harmed, so you think the ACA was a great deal. Everything looks good if you only look at the benefits side of the ledger!
Before ACA, many people not named "Brett B." were denied insurance or had much higher costs.
Some of them went bankrupt, a federal government guaranteed entitlement. Many people have cheaper insurance, including via Medicaid expansion. The "more" part will need more details & BB is not the unbiased informed person I would go to to judge that.
Not just "Obama" wanted ACA to pass. The ultimate law was crafted by the House and Senate because the people of the United States supplied Democrats with a strong enough trifecta to do so.
The question holds -- the millions of people who benefit, explaining why overriding ACA is so unpopular -- reasonably want to know the alternative. It's not "I got mine, so tough."
The alternatives often are broader plans. ACA was a more conservative plan based on for-profit insurance, long-in-place employment-based care, tax benefits, and an extension of a long-in-place Medicaid program. This allowed it to pass a 60-vote threshold in the Senate, and the House, and be signed by the president.
A lot more than "Obama."
Yes, Joe, when you rob Peter to pay Paul, Paul benefits. This looks great as long as you only look at Paul, and blow off what you did to Peter.
Do NOT expect Peter to agree to do that. Peter will be, and will remain, royally pissed off.
“The ultimate law was crafted by the House and Senate because the people of the United States supplied Democrats with a strong enough trifecta to do so.”
Which trifecta evaporated before you were even done enacting it, which is why you couldn’t even amend the problems you found in it and hold another vote. And why have you since not had remotely the same trifecta? People are terrified of what you'd do if you got it!
See, this has become a big hairy problem with our democracy today, which is why people now treat the outcomes of elections a mortally important: You have somehow gotten the idea that you’re entitled to do huge and irrevocable things on party line votes. So it becomes mortally important, if you don’t want huge and irrevocable things done to you, to deny the opposition a majority.
” the millions of people who benefit, explaining why overriding ACA is so unpopular”
Concentrated benefits and diffuse costs are why overriding ACA is a political non-starter.
Yes, Joe, when you rob Peter to pay Paul, Paul benefits.
I’m Peter, and not Paul, so it was theft, not taxes. Or maybe you’re the “all taxes are theft” kind of libertarian?
You have somehow gotten the idea that you’re entitled to do huge and irrevocable things on party line votes.
Why is a 60-40 vote in the Senate along party lines less legitimate than a 60-40 vote that includes members of multiple parties on both the yea and nay sides?
Party line votes are usually a sign that the leaders of one or both political parties are playing power politics and cajoling or threatening the members of their parties to stay in line rather than to vote for what their constituents actually want.
Also, “huge and irrevocable” is hyperbole, at best, when it comes to the ACA. The only extent to which it is huge is that it makes a huge difference in the lives of people that benefit. The only extent to which it is irrevocable is its popularity with a majority of voters. That is the same as any other law.
Concentrated benefits and diffuse costs are why overriding ACA is a political non-starter.
That is the how all social welfare programs work. The costs are spread among all taxpayers, while the beneficiaries are a minority. If that kind of program is popular, it is because voters have decided that they are willing to pay the costs for the people that benefit. Either they know someone that benefits, and thus view it as worthwhile, they want it to be there in case they need it, or they just think that it is the right thing to do. If you want to argue against their choices, then convince a majority to agree with you, and you might get it repealed.
"That is the how all social welfare programs work."
Yes, that is how all programs that advance the particular, rather than the general welfare, work. Which of those, again, is the federal government directed to pursue?
Concentrated benefits and diffuse costs is a pathology of democracy: If you tax 100 people by $1, burn $20, and give 40 people each $2, those 40 people will fight like hell to make sure you can keep doing it, even though society gets $20 poorer each time you do it.
It's always a bad idea to separate costs and benefits, and the ACA deliberately both separates them, and obscures who is responsible for the costs. It was done in the perverse, fascist manner it was, so that the costs would be blamed on the insurance companies, rather than the politicians who mandated them.
Bellmore — The insurance-through-an-employer model has long robbed everyone else to subsidize the smallish minority in the work force who are young enough, and healthy enough, to offer actuarial advantage to insurers. In the end, everyone ages out of that category. Only a tiny minority do so after accumulating enough wealth to pay market rates for healthcare. The rest get screwed, unless something like Obamacare or single payer is there to adjust the accounting to a life-long standard applicable to everyone.
You’re talking about the product of earlier distortions of the insurance market, you do realize that, right?
In a free insurance market, where you could keep the same health insurance your whole life, because YOU were the purchaser, not your employer, insurance companies would likely offer health insurance products analogous to "whole" life insurance: You'd pay a uniform premium from the start, which was in excess of what the insurance cost to provide when you were young. That excess would be invested and grow, to cover the premium's shortfall when you were older.
But they can't offer such a product in today's warped insurance market, because people can't keep the same policy, let alone insurer, all their lives, because people don't buy their own insurance, it's bought for them by employers as a work benefit.
In a free insurance market, where you could keep the same health insurance your whole life, because YOU were the purchaser, not your employer, insurance companies would likely offer health insurance products analogous to “whole” life insurance: You’d pay a uniform premium from the start, which was in excess of what the insurance cost to provide when you were young. That excess would be invested and grow, to cover the premium’s shortfall when you were older.
That's not a realistic model of health insurance. People don't always keep the same car insurance for the full length of time they own a particular car, so why would they expect to keep the same health insurance from the time they were young until old age? What happens if they can't afford the premiums for some period of time while out of work? What happens if they are diagnosed with a serious illness or chronic condition while young that would cost more to treat than the total premiums that they've ever paid?
What you are really describing is more like a personal health savings account. Save while you are young, and then the money you put in, and only that money and any returns, are available to pay your costs later.
You seem to completely misunderstand how insurance works. Your premiums are not invested by the insurer and used to pay your costs. Your premiums are part of the insurer's revenue stream, along with everyone else's premiums and the return on any investments that the company made in the past. It is from that total revenue stream that it pays the claims of all of its clients, along with all of the administrative costs, reinsurance, marketing, and profit. That is how risk and costs are pooled. The insurer obviously is going to be able to make more profit if it has a younger, healthier pool of clients than if it includes older people. The incentive will always be to sign up young people and to drop older and/or less healthy ones any time that they can. That is why the guaranteed issue part of the ACA was so necessary and helpful to people that had trouble getting insurance any other way.
JasonT20 — Note also that the mechanism to insure via employment is itself a powerful screen to spare insurers liability for treatments to folks who become seriously ill or disabled. Those are less likely to continue in employment.
For that reason, big-employer group plan contracts could be bid down to prices highly favorable to the insureds, with any risk of shortfall heaped onto price schedules for small-group or private insureds, which lacked comparable bargaining power. As the cost of healthcare rose, all those market tendencies were exacerbated, until their contradictions turned the process into a public policy emergency.
Of course, folks who enjoyed the bargains on offer to large-group employers concluded they were getting well-earned benefits commensurate with their extra value to employers. Thus, as that apple cart began to pitch end-over-end, the less thoughtful (or more self-entitled) among the erstwhile bargain recipients denounced any public policy to fix the problems. They are still denouncing.
But it's a perfectly realistic model of life insurance. I still have the life insurance policy I got in my 20's, over 40 years later. Every year I get an accounting of the balance I built up when I was younger, and an estimate of when it is expected to run out.
I see no reason save government interference with the insurance market that this model could not be made to work for health insurance, with suitable adjustments.
A life insurance payout is a fixed, or tightly limited, amount which occurs at a statistically predictable time over the population of policyholders.
Life insurance companies don't monitor your choices of treatment or medication, nor do they have contracts with service providers (undertakers??) to provide a certain number of customers in return for lower rates.
Only if it's forced to charge the same rates for all people without any relationship to their risk profiles.
In a free insurance market, where you could keep the same health insurance your whole life, because YOU were the purchaser,
Maybe you could. If someone will sell you such a policy, which is pretty dubious. I remember working for myself for a few years and buying an individual policy. The choices weren't great, with all kinds of limits and so on.
No one offered be the kind of "whole life" policy you claim will magically appear because...market. There's a reason for that that you completely ignore or overlook. Life insurance policies have fixed payouts. Health policies don't. The insurer wouldn't know what it was committing to paying, or when.
If you knew anything about insurance, instead of pulling a lot of crap out of your presumed all-knowing brain, you'd see that. Instead you go with your libertarian fantasies.
Right, health insurance policies have stochastic payouts. Insurance companies are professionals at dealing with statistics.
I have home insurance, my insurance company doesn't know when I'll be making a claim, it doesn't know if a tree branch will fall and put a hole in the roof, or a tornado will erase my house from existence. Somehow they manage.
Aiding them in managing is the fact that the policy has an upper limit; If that tornado arrives, they only have to pay out the policy cap, worst case.
Health insurance could be similarly configured, with a payout limit beyond which it reverts to being, essentially, a life insurance policy. Your policy cap is $200K, the chemo to save your life is $250K? Here's $200K, you can spend it on the chemo or one last fabulous vacation, your choice.
What prevents insurance companies from offering these sorts of policies? Regulation. It's find to say "because market", but it's not a free market, it's a very heavily regulated market indeed.
Back to the ACA: Why did so many people lose their policies they liked, despite Obama's lies? Because the government made them illegal. Not a free market, at all.
when you rob Peter to pay Paul, Paul benefits
ACA has many benefits that benefit Peter and Paul. Net, just how much “robbing” is going on is quite questionable. No system is going to help everyone equally. The determination was net it was equitable. Meanwhile, again Peter and Paul benefit in multiple ways, even if one or the other doesn’t like certain things.
Which trifecta evaporated
False. The supermajority to pass it in the Senate was lost by one vote & the vote was from a state that already had a good health insurance plan. Somehow, ONE senate seat changing hands was supposed to be a national referendum. The Dems still controlled both houses and the presidency. A trifecta.
which is why you couldn’t even amend the problems you found in it and hold another vote
Again, this is because of the filibuster in the Senate. Not a single Republican was willing to grant the basic sanity that once the basic measure was agreed to housekeeping edits that didn’t substantively change anything should be allowed. A patently stupid approach to governing.
And why have you since not had remotely the same trifecta? People are terrified of what you’d do if you got it!
Republicans won & then lost their trifecta for various reasons.
The people opposed the repeal of ACA. Someone already responded to your alleged reason. The facts are twofold.
One, the actual votes weren’t there to overturn it even when the Republicans had a trifecta. Two, people like it, including Medicaid expansion. Enough that risking overturning it with promises of theoretical alternatives won’t convince them otherwise.
gotten the idea that you’re entitled to do huge and irrevocable things on party-line vote
Are you under some assumption that big things were not done via party-line votes in the past? ACA is not “irrevocable.” The public doesn’t want it overridden. Not quite the same thing.
ACA was passed when the people of the United States chose to give the Democrats a trifecta. The Democratic caucus had a range of people, including conservatives, moderates, and liberals. This didn’t pass by some bare majority. 60 votes in the Senate. 59 or 59 still wouldn’t have been a close vote.
If you don’t like party politics, fine, yell at the Republicans for confirming the Supreme Court justices that led to a 6-3 supermajority by a bare majority.
You are a B.S. artist because you have not consistently wanted Republicans only to do big things with Democratic support. If Republicans had the raw power to do something, you repeatedly were fine about it. Anyway, that is our system, and since the days of Thomas Jefferson, partisan majorities did big things.
I appreciate the other people talking about the issues here.
BTW, I used to be a participant here years back. I read some of the debates on this blog when ACA was being crafted.
One contributor called out the Democrats for how the final bill was sloppily written. He for some reason didn’t equally call out the Republicans for refusing to support sane good government and support a housekeeping edit.
One familiar voice (not BB) said “tough” since Republicans had the raw power to do this. Well, they did. But, we can recognize where the blame should be set.
Instead, some blame the Democrats, who were forced by an inane application of the filibuster to pass the unedited bill, reconciliation only allowing a smaller amendment.
Supposedly, Dems were supposed to just give up since one senate seat traded hands. They already spent over a year to get minimum Republican support.
Democrats would have gladly compromised [e.g., perhaps voluntarily Medicaid expansion, though of course, SCOTUS helped them out there] to get a bill passed.
This all is a problem with the government today, but “both sides” don’t quite do it equally.
After ACA a lot of people ended up with much higher costs.
Yes, but they're the Peters, so they don't count. In the Democratic view of accountings, you're only allowed to talk about benefits, not costs, it's heartless to be concerned about costs, and heartlessly selfish to be concerned about costs that are imposed on YOU.
Pre-ACA, I got diagnosed with cancer. Two cancers, actually. My out of pocket? $6,000. The insurance company paid the cost of a nice house out to save my life.
Well good for you. My wife had a similar experience. We had excellent employer-based insurance. Without it -- forget the price of a small house. One chemo infusion at Stanford is worth about $50K if you pay for it retail and the prescription was for dozens, then surgeries which are anywhere from $150K to $200K on the price list.
Now imagine you are facing all that without insurance. That's where a lot of people were. The #1 cause of bankruptcies is medical costs.
ACA was a compromise to address that. Republicans fought ANY change tooth and nail and Obama/Pelosi spent all the political capital they had and then some. The Republican plan: Don't get sick and if you do die quickly.
Today, with much more expensive insurance, if the same thing happened, I’d end up bankrupt from the co-pays. Actually, I’d probably have to just accept that I was going to die, to avoid ruining my family’s finances.
Your assumption that you could get the employer based plan you had then today in the free market is a bad one.
"The #1 cause of bankruptcies is medical costs." Doubtful. This claim is usually sourced to research by Sen. Elizabeth Warren (D MA). However, legal blogger Ann Althaus revealed that Sen. Warren's conclusion was based on her going-in assumption that any medical debt in a bankruptcy estate of $5k or more was deemed to be the cause of the bankruptcy. So if a debtor owed $10 million in non-medical debt, and $5,001 in medical debt, the medical debt was deemed the cause of the bankruptcy. As I recall, Warren claimed that she had adjusted for that, but refused to provide details or verification of any sort.
I have not kept up with the issue, so if you have other sources for that claim, point them out.
GKHoff — Do you argue that it is good policy to make medical care a leading cause of bankruptcies? If not, what's your point?
Perhaps consider also the many nations that seem to manage adequate healthcare without inflicting bankruptcies. Is it wise policy guidance to ignore those?
That medical care wasn't a leading cause of bankruptcies. But… sure, why not? What should be a leading cause of bankruptcies? Something has to be, after all.
My assumption is that, yes, I could get the same insurance today if it hadn't been outlawed back during the Obama administration. Why wouldn't I assume that? When somebody outlaws you getting something, and it becomes unavailable, do you automatically leap to the conclusion it became unavailable for some unrelated reason?
Yes, it sucks to desperately need something you can't afford. It sucks MORE to desperately need something you CAN afford, but you won't get it because some asshole with a gun took your money from you so that somebody who DIDN'T earn it could get that something in your place.
You're looking at the benefit to the people who got something for less than it costs. And you're ignoring the harm to to much larger number of people who are forced to buy it for much MORE than it costs, if they can afford it at all anymore.
Always the same: Demanding that only the benefits be looked at, and never the costs.
My assumption is that, yes, I could get the same insurance today if it hadn’t been outlawed back during the Obama administration. Why wouldn’t I assume that?
Why would you? You got that policy through your employer. Did you try to get it as an individual? I bet you couldn't. And if you couldn't get it then, why now?
So, what would my alternative be?
Health insurance ought to be a regular insurance product, like any other form of insurance, not a government regulated mess. Especially, it should NOT be tied to employment, forcing you to change insurers whenever you change jobs or your employer thinks they (Not necessarily you.) can get a better deal somewhere else.
To break it free from employment, it needs to have the same tax status (Pre-tax) regardless of where you obtain it.
Insurance pools DO help on a statistical basis, and allow for better negotiation. So, why not allow people to get their health insurance, on the same tax basis, though churches, fraternal organizations, Costco, you name it? Organizations you don't have to quit just because you change jobs.
And then, if the government really wants some people who can't afford insurance to have it anyway, they can do just like they do for people who can't afford food: Pay for it out of general revenues, at the going rate. If you're going to have welfare, make it on-budget.
So, what would my alternative be?
Some of your suggestions make sense but I am going to refrain from pointing out the problems I see.
I wasn't asking about what your alternative would be, I was asking what Randy Barnett's alternative would be. As far as I can see: none. The same as the caucus of Republicans who held more than 50 futile votes to overturn Obamacare in the House. And if that turns that Randy Barnett is just another rendition of that, then I continue to assert that he is not worth listening to.
Personally, I would rather talk to you about it. At least you put up some solid suggestions to start with.
Frankly, when you think something was a bad idea, and unconstitutional, you're not obligated to suggest a replacement when you say it should be repealed.
Bellmore — What happens when you think something is advantageous partisan politics, based on policies to screw a majority to advantage a minority whose votes you hope to mobilize on your own behalf?
“based on policies to screw a majority to advantage a minority”
Didn’t he thoroughly explain how this is precisely what ObamaCare was?
Frankly, when you think something was a bad idea, and unconstitutional, you’re not obligated to suggest a replacement when you say it should be repealed.
No. But you are obligated to consider the consequences of the repeal. Because there will be some. And to say, "This is bad," get rid of it, without that is foolish.
What do you think Randy sees as happening?
why not allow people to get their health insurance, on the same tax basis, though churches, fraternal organizations, Costco, you name it? Organizations you don’t have to quit just because you change jobs.
This used to be not uncommon. Association plans, I think they were called. They disappeared, not because of Obama or some regulation, but because they failed financially, in a way that is highly predictable and a known problem in insurance markets. - adverse selection.
Unhealthy? Can't get insurance? Go join the Elks, or sign up at Costco. Of course the Elks will have to raise their premiums, and healthy policyholders will quit and go elsewhere. So rates go up again, and only the really desperate are buying Elks' policies. Etc.
These "free-market" alternatives sound good to libertarians, who don't bother digging into details that destroy their oh-so-lovely stick-figure models.
Oh, and not regulated? How exactly are you sure the Elks will have the money when you need it? Health insurance can be a very long-term proposition. Surely you want someone taking a peek at the books every now and then - someone with the authority to order them to make changes.
Prof. Barnett's the type of "libertarian" who operates a far-right mouthpiece shop, spends his time twittering about the evils of liberalism and fighting for the losing side of the culture war, and associates with the Trumpian-MAGA likes of the Volokh Conspirators, Jeffrey Clark, and Trump judicial nominees.
Just another faux libertarian right-winger who doesn't want to admit he's a clinger.
If Prof. Barnett is a "faux libertarian," who's the real thing? Obama?
You're so full of shit...
He gave Robert "Theocrat" George a leadership position at his vanity mouthpiece operation.
Faux libertarian. Wingnut culture warrior. Volokh Conspirator (bigot-embracing right-wing blog). Just another disaffected right-winger who can't stand modern America.
Randy (or Eugene) is on record, on this blog, stating that it was not important what theory they used, the objective was to defeat the ACA. It was not a principled position.
And as for most conservatives, who were in total agreement with the ACA when it was proposed by Republicans, it wasn’t either.
If you squint really hard, are blind in one eye, and don't care about major differences, you might think the ACA vaguely resembles a proposal from the Heritage Foundation that went nowhere because other Republicans were aghast at it.
Brett,
Your link takes me to Heritage articles on health care, but not to their plan that we are talking about. Maybe you could fix it.
I tried, but they've taken that policy proposal and effectively hidden it, I think because the reception was so hostile.
But, from another source friendly to the claim, no, not really the same. Omitting the requirement that the insurance be subsidized is the big difference.
Or, from the American Prospect: No, Obamacare Wasn't a "Republican" Proposal
Here's a more balanced analysis, with a lot of links.
Looking at the conservative ‘heritage’ of some core ACA features
Including one from somebody actually at Heritage: Obama's health reform isn't modeled after Heritage Foundation ideas
As has been repeatedly said by many sources, the claim that the ACA was really a Republican proposal that they rejected purely because it was advanced by Democrats is a non-starter. Or as I said at the time, just because somebody has said they like cherries doesn't mean they're obligated to each a shit sandwich if you put a cherry on top.
Barnett eats penis-flavored ice cream.
He either loves or hates broccoli
Can’t remember which.
Don’t care.
He’s a misfit and a loser. A hero to disaffected malcontents, though. A Ron Paul of the legal academy.
A long time back, I went to an appearance of his. They served pizza.
JoeFromtheBronx—Apparently, you aren't a pretty little boy; otherwise, he would have invited you to his home for dessert.
Barnett exemplifies the class of libertarian cranks who lack any theory of government, but imagine critiques of others' theories make up that deficiency. It's a kind of Swiss cheese rationalism, with the holes the defining features.
- That government is best which governs least.
- a government limited to its essential functions
- night-watchman state
Seems like a fine theory of government to me. Sure beats statism!
IOW, government by libertarian platitude. Some theory.