Be Careful What You Wish For
posted by David Orentlicher
As doctors learned with their opposition to government-sponsored health insurance, critics of the Affordable Care Act (ACA) may win a Pyrrhic victory if the Supreme Court strikes the individual mandate down. It may be unpleasant to be subject to the dictates of the state, but it can be even worse to be subject to the dictates of the private sector.
Thus, for example, many physicians and the American Medical Association (AMA) opposed the Clinton health care program because they did not want to work with the government’s bureaucracy and rules. However, they found it even more difficult to work with the bureaucracy and rules of insurance companies. As a result, the medical profession became more supportive of a national health insurance program, and the AMA backed ACA.
Consider the deal offered by ACA compared to the current deal that the private sector provides. Most Americans get their health care insurance through their employers and therefore are subject to a private individual mandate to purchase health care. How is this so? Say an employer offers health care benefits worth $10,000. If the employee declines the offer, the employer does not substitute $10,000 in salary. Either the employee accepts the health care benefits or gets nothing. There really is no choice—the employer forces the employee to spend a significant chunk of compensation on a health care plan.
The ACA mandate, on the other hand, imposes a much smaller penalty on individuals who do not purchase health care insurance. Rather than losing 10 or 20 percent of income from one’s employer for not buying insurance at the workplace, people are subject to a penalty of only 2.5 percent of income under the ACA mandate. Moreover, the ACA mandate comes with protection against preexisting conditions clauses and preservation of health care insurance for people who lose their jobs or voluntarily leave their employment to start their own businesses.
It is important to worry about governmental power, but there are times when the choice is not between more or less individual freedom, but between freedom from governmental power or freedom from corporate power. When it comes to health care, it often is better to work with the government than the private sector.
June 19, 2012 at 8:51 am
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
Responses (9)
Patrick S. O'Donnell - June 19, 2012 at 9:31 am
Aside from the fact that the notion of “individual freedom” being relied upon by critics of the ACA is a tendentiously impoverished conception (such that it includes a failure to appreciate the myriad ways ACA enhances the values and purposes of such freedom!), I think you’re right. And not just corporate power, but the vagaries and uncertainties of contemporary capitalist markets….
Brett Bellmore - June 19, 2012 at 12:37 pm
I think we’ve got an impoverished conception of “power”, if we’re pretending the power wielded by corporations is anything like the power wielded by governments. Corporations can viciously not do business with you, if you don’t do what they want. Governments can jail you. There’s a little difference there….
Patrick S. O'Donnell - June 19, 2012 at 1:44 pm
The nature of “capitalist democracy” places structural constraints on both the articulation and satisfaction of interests within the system. With regard to the latter, for instance, and owing to their control of investment, “the satisfaction of the interests of capitalists is a necessary condition for the satisfaction of all other interests in the system,” which means “the welfare of workers remains structurally secondary to the welfare of capitalists,” a fact we conveniently forget in times of economic abundance and low unemployment but is resurrected in the wake of the cycles, crashes, and panics endemic to capitalism. The decisions of capitalists are directly responsible for the well-being of workers, and thus we see the “interests of capitalists appear as general interests of the society as a whole, [with] the interests of everyone else appear as merely particular, or ‘special.’” As for the articulation of those interests inextricably tied to basic human and political rights:
“In a capitalist democracy the exercise of political rights is constrained in two important ways. In the first place, the political rights granted to all citizens, workers among others, are formal or procedural, and not substantive. That is, they do not take into account in their own form and application the inequalities in the distribution of resources, characteristic of capitalism, which decisively affect the exercise of political rights and importantly limit their power of expression. [….] Capitalist democracy also tends to direct the exercise of political rights toward the satisfaction of certain interests. The structuring of political demand, or what we call the ‘demand constraint,’ is crucial to the process of consent. [….] [C]apitalist democracy is in some measure capable of satisfying the interests encouraged by capitalist democracy itself, namely, interests in short-term material gain.”
This “demand constraint” canalizes the articulation of the interests of working people into the exclusive pursuit of economic advantage, in part owing to the ubiquitous conditions of “material uncertainty” for all but the wealthy classes: “There is a characteristic economic rationality to the actions of workers encouraged by capitalism. In the face of material uncertainties arising from continual dependence on the labor market under conditions of the private control of investment, it makes sense for workers to struggle to increase their wages.” See their book, On Democracy: Toward a Transformation of American Society (New York: Penguin Books, 1983).
Corporate lobbying power corrupts even the most if not especially democratic systems. Corporate power takes myriad and often insidious forms, and beyond the regulation and reach of national governments. The threat of capital strike or flight is frequently used by corporations to get their way with both local and national governments.
The distorted and artificial needs and the individually and socially harmful desires generated by hyper-industrialized casino capitalism finds the masses in a state in which they feel an overwhelming need to be psychologically indemnified by the possession and consumption of as many goods and services as possible, in a socio-economic world in which conspicuous consumption exists side-by-side with absolute and relative poverty. In such a system capitalists are thus, at least psychologically speaking, every much victims as are the workers and the unemployed. Capitalist democracy remains committed to the aristocracy of Capital, meaning that, in the end, the special interests of capitalists trump generalizable interests tied to the common good, while economic insecurity compels workers to canalize their interests in the struggle for higher wages or short-term material gain. The aristocracy of Capital finds workers dehumanized insofar as they’re indemnified by the false promises of conspicuous consumption and irresponsible affluence, utterly distorting the pursuit of happiness and the potential of individuals for uniquely realizing values and manifesting virtues.
Religious and philosophical worldviews and traditions are passed down through “reference groups” and thus are the primary source of our conceptions of “the Good,” of our most important moral values and principles. Call these worldviews and traditions “Repositories of the Good.” In a capitalist society we must be ever-vigilant about the deep entrenchment of the economization of all social relations, about the likelihood of commodification of traditions, about the concomitant ideological contortions and distortions of commodity fetishism and reification of both secular and religious worldviews. This is not in the first instance a result of inordinate government power but reflects the inability of governments to control capitalist economic power, of the sort exemplified by corporations.
Historically, capitalism has been the principle cause of the breakdown, fragmentation or fragility of our reference groups and thus has served, in turn, to displace the normativity of “the Good.” Consider, for example, the following:
“The emergence of the market in labour power required the dissolution of the reference groups, so that one subject came to face another no longer within the web of norms presented by the sharing of various reference groups. Instead one subject came to face another solely as competitor in the market to supply Capital with labour power necessary for the maximisation of profit. Capital needs labour power to be freed from the normative bonds of our actual traditions, or else its supply will be economically inefficient. And of course, for Capital, the only measure of the adequacy of its supply is the economic efficiency in terms of profit maximisation.”
“Capitalism cannot abide the construction of relationships other than those economic ones in which it places one labourer in relation with another. [….] It is this total economisation of human relationships under capitalism that stands in the way of the repair to the good life….” Put differently,
“For capitalism to flourish, moral agency must be replaced by economic agency and therefore it is no good trying to put a ‘human’ face upon capitalism. As long as the underlying economic arrangement is a capitalist one, there is no room for the construction of the reference groups required to make that face more than a shallow mask.”—Michael Luntley
It is not that the power of the National Security state and the Megamachine is innocuous or irrelevant but that when it comes to the issue of health care, the power pf government in this case is being used to articulate the common good, while corporate power is not (or when it does, it’s by accident or incidentally, or by pressure from without). In other words, that fact that governments in the end are backed by coercive power or that, as you say, “can jail you,” is really beside the point. The health, welfare and well-being of most of us is what is at stake here, what should be our first and most urgent concern, and thus not the fact that some people, for whatever reason (and rightly or wrongly), may face the prospect of going to jail.
Patrick S. O'Donnell - June 19, 2012 at 1:47 pm
errata(last para.): “…the power of government in this case….” and “In other words, the fact that governments….”
Joe - June 19, 2012 at 1:52 pm
The government is elected by the people and has various checks like due process of law and so forth. Corporations do not. Many “governments” — like some locality — don’t jail many people. They have limited budgets and reach. Corporations have a lot more power, money and reach.
At to the first comment, SG Verilli basically made this point at the end of the three day marathon oral arguments, referencing the “blessings of liberty” protected by the legislation w/o overriding the limits of the federal gov.
Joe - June 19, 2012 at 1:54 pm
[edit: the federal government, obviously has more power than your average corporation and corporations have various limits, but the above still holds]
Joe - June 19, 2012 at 1:56 pm
“2.5 percent of income under the ACA mandate”
maximum … if the $695 or whatever the figure is less than this, they don’t actually have to pay 2.5%.
Daniel Aldouby - June 20, 2012 at 11:22 am
Corporation are not necessarily concerned with the common weal, except where it impacts their bottom line. Government has as one of its prime raison d’etres, the common weal. Most Americans agree that “something must be done” about our health system. The Affordable Care Act is a start toward fixing the problem. The mandate is small part of this act, but is a part of the solution. If it were a tax, there would be no lawsuit based on this fee. Methinks those who do not like this act do protest too much. They have politicized that which should have been a matter of consensus. No wonder the average citizen is bewitched, bothered and bewildered.
Joe - June 20, 2012 at 12:06 pm
“If it were a tax, there would be no lawsuit based on this fee.”
I doubt that. The arguments already are creative. Why not claim the tax is an unconstitutional one? The Medicaid suit suggests tax/spending matters are open to litigation.
Leave a Reply