This must be that "common-sense regulation" I hear such good things about

The state of Virginia's Board of Health recently enacted new regulations on abortion clinics. Ostensibly enacted to protect women's health, in practice they serve as an interesting example of how the regulatory state can be, and often is, used by governments to chip away at rights that are impractical to simply abolish wholesale. (Found via Reason.)

Last year, the state's General Assembly passed, and Governor Bob McDonnell signed, legislation requiring the state's Board of Health to institute new regulations requiring all existing abortion facilities performing five or more first-trimester abortions per month to comply with regulations similar to those that apply to new hospital construction (but not preexisting hospitals) in the state. The Board did so, creating an extensive list of new regulations last year, covering all existing and future facilities in the state, and finally voted to approve them this September. They will go permanently into effect next year, contingent on approval from Gov. Bob McDonnell. The board had voted back in June to include a grandfather clause exempting existing facilities, but reversed itself under pressure from Virginia's Attorney General, Ken Cuccinelli.

(For a more in-depth history see this article at Mother Jones. Detailed and refreshingly light on the conflation of forcing women to carry a pregnancy to term and failing to force some third party to subsidize recreational sex when a woman demands it that now infests left-of-center commentary on the subject.)

The new requirements (see this PDF file, starting on page 27) imposed on existing buildings are taken mostly from the 2010 Guidelines for Design and Construction of Health Care Facilities published by the Facility Guidelines Institute. These include things things a minimum size of 80 feet for exam rooms for exam rooms, corridors at least 5 feet wide and seven feet ten inches tall, hands-free sink faucets, water fountains in waiting rooms, and new ventilation systems. Many of these are not trivial modifications to make to an existing building, and some existing facilities in the state will have to undergo costly renovations in order to continue legally operating.

Now, it's fairly obvious that the real point of this measure is to make it harder for abortion clinics to operate in Virginia, with the supposed public health justification serving as a fig leaf. The naked opportunism of the new regulations is made plain by the fact that they require existing abortion facilities to comply with building codes that apply only to new hospitals, which makes very little sense if protecting the health of patients at these facilities is really what this is about. Surely protecting the health and safety of people with heart problems or inflamed appendixes or stab wounds is no less important than protecting that of women undergoing abortions, after all. The improbability of the regulations' conservative supporters being driven by the genuine belief that women getting abortions ought to have more government-mandated protection for their health than everyone else should be obvious.

(Adding to the absurdity, the reason the regulations specify five or more first-trimester abortions is that abortions later in the pregnancy are required by law to be performed at a hospital, which may or may not be obliged to follow the same rules- so late-term abortions entail less potential risk to patients and so warrant less oversight than early ones, I guess.)

Indeed, calling the public health justification for these regulations a cynical ruse is actually a more charitable interpretation of their supporters' motives then taking them at face value. If these regulations are really such a good idea, so good that they should be imposed on existing facilities at considerable cost, their supporters in the legislature are guilty of an unconscionable betrayal of their constituents by wasting time and energy imposing them on only a very small niche of healthcare in the state when they should be fighting tooth and nail to get them in place everywhere, in old and new hospitals alike. While they dither, countless Virginians are apparently being imperiled every year in hospitals that were built before the current hospital construction regulations and exempted from current building standards, allowing their irresponsible owners and administrators to wantonly gamble with human life in miasmic corridors only 7'9” in height.

The vast scope of modern government power gives it tremendous latitude to attack freedoms that it supposedly still respects, either because they are supposed to be legally guaranteed rights the government cannot take away or because public opinion wouldn't tolerate their overt elimination. For instance, if it can't simply announce that no one can own a gun, it can still impose “reasonable regulations” to make it more burdensome, possibly to the point of a de facto ban. For instance, contrary to what is often thought, the city of Chicago has never actually banned owning handguns- you're just required to register them. Which you can't do without a time machine, because the city stopped accepting new registrations in 1982. It can't deny people the right to travel, but it can put all sorts of strings on any means of travel other than your own likes. You want to fly, you jump through whatever intrusive or degrading hoops the government demands- movement may be a right, but flying is only privilege. You want to drive- a driver's license is a privilege, not a right, and the government owns the roads, so you've “agreed” to give up some of your protections regarding search and seizure.

And it can't make abortion illegal, but it can do quite a bit to make legally getting one as burdensome as possible. The government of Virginia is no stranger to that, being one of the states requiring women to undergo a medically pointless abdominal ultrasound before receiving an abortion, supposedly to ensure that women can make an “informed choice” about the procedure. And that was the compromise solution, of course, enacted after supporters of the notorious original version of the law requiring transvaginal ultrasound compromised.

(Again, the limits of the measure's scope betrays the actual intent. The version of the ultrasound bill eventually passed in Virginia exempts women whose pregnancy is the result of rape or incest. That makes sense if the real purpose of the bill is to make getting an abortion a more burdensome and unpleasant experience- many people might like that idea in general but draw the line at doing it to a rape victim. It makes much less sense if the mandatory ultrasound really is supposed to be for the benefit of the woman. If you genuinely think it helps women considering abortion, and in fact helps them so much that it should be mandatory, why in God's name would you single out victims of rape and incest as the only women who aren't guaranteed this help?)

This is one of the problems with so many governmental powers that the great majority of people support. Like the power to tax, the power to regulate is the power to destroy, or at least the power to cripple, and when a governments' powers and activities intertwine with virtually every area of life in one way or another- as they inevitably do in any regulatory/interventionist state- very little if anything is out of reach.

The right to have an abortion is particularly vulnerable to this. It's an invasive medical procedure, making it part of one of the most regulated sectors of the economy- strict government regulation and licensing in the field of healthcare ranks high among those things everybody within spitting distance of the political mainstream mainstream “knows” is obviously necessary. It requires a permanent facility for both production and (for lack of a better word) consumption, and it's frequently done- as is the case here- in specialized facilities, which makes it highly vulnerable to attacks via zoning regulations. All of this makes it vulnerable in a way many things large numbers of people would like to restrict aren't. (There are certainly ways to interfere with or discriminate against homosexuals while still nominally respecting their right to sexual freedom, but making homosexuality de facto illegal by driving all of the gay sex factories in your state out of business with burdensome regulations is not one of them.) Given how intensely controversial abortion is, it's unsurprising that there are plenty of people ready to use the tools available to them.

It's a perverse irony that there's so much overlap between people who support abortion rights and people who wants to make the government's power to assail those rights even stronger. If you think there are powerful forces arrayed against women's ability to have an abortion now, what do you suppose it would be like in a single-payer system where every abortion is funded by the taxpayers, where people who want it restricted or outlawed are outraged at not merely having to tolerate something they consider murder but being forced to pay for it themselves every single time it happens, where people who think abortion should be legal but recoil at the notion of having any part of it themselves are told that simple tolerance is no longer an option, where the only source of money for a legal abortion is a perpetual political battlefield and comes with whatever strings Congress chooses to attach? As things stand now, making abortion inaccessible through legal channels nationwide would require a Supreme Court decision overturning a maor past decision or a constitutional amendment. Turn medicine into what many "progressives" want it to be, an arm of the state, and it gets a lot simpler.

"For you, the day the Supreme Court graced your health care was the most important day of your life. But for me, it was Tuesday."

While I'm far from happy about the Supreme Court's decision affirming the federal government's right to force people to buy the products of insurance companies, I can't say I agree with the emphasis so many people unhappy with the decision have placed on it. Not because the insurance mandate isn't awful- it certainly is- but because I just don't see the Supreme Court's decision upholding the mandate as constitutional as anything more than business as usual.

Yes, it's true that giving the federal government the power to force people to engage in a particular business transaction is a new usurpation of unconstitutional authority that makes a mockery of the idea of a government with limited powers restrained to the modest role defined for it in the Constitution. Which is bad, but at this point but it's sort of like a single bullet from an entire magazine that someone just emptied into you- it's always better to have fewer 5.56mm holes in your chest rather than more, certainly, but if there's already 29 of them it's a bit silly to curse the 30th as the one that killed you.

Thus, while I certainly don't think the mandate is constitutional- if we're defining “constitutional” according to that document's text- I find the arguments of its more mainstream opponents against its constitutionality uncompelling. Much was made by some critics of the mandate of the fact that the mandate compels a person to actively engage in commerce, rather than regulating or forbidding commerce that already exist. As much as I oppose their premises, I actually agree with liberal defenders of the mandate that this distinction is meaningless hairsplitting.

Yeah, forcing people to buy the products of private firms is not a power the federal government has previously had, or one the Constitution suggests that it has. So what?

Think about the state of constitutional government prior to this. The United States was already a country where the power to take private property “for public use” encompasses taking people's homes and giving them to private developers, where growing food on your own land to eat in your own home on that land can be regulated as “interstate commerce,” where forcing men from their and homes against their will and making them serve in the military at gunpoint is not “involuntary servitude,”where the Fourth Amendment doesn't apply in the presence of an internal combustion engine, and where neither seizing someone's property because the police suspect them of a crime and requiring them to prove their innocence to get it back nor imprisoning thousands of people not convicted or even suspected of any crime because their ancestors were born in the wrong country are incompatible with the Constitution's guarantee of the right to trial by jury and due process of law.

The idea that the federal government is limited to doing the things the Constitution says it can do has been a joke since my grandfather's time. Even the much weaker claim that the government can't do things the Constitution explicitly says it can't do is shaky under even the best circumstances, and things are seldom at their best.

I don't think a strictly limited state with powers narrowly constrained by a constitution that actually stays that way is plausible; that's one of the major reasons I'm an anarchocapitalist. (The monopoly state is necessarily the judge of its own cases, and so is bound by it's constitution largely to the extent that those who wield its power want it to be bound, and the people most motivated to pursue that power are those who want to use it.. Things like separation of powers can ameliorate the problem, but don't come close to eliminating it; the only thing that could would be a governing class free of the self-interest and hunger for power over others endemic in the human race that supposedly makes the state an indispensable protector for society in the first place.) You needn't share that general perspective to accept my point in this post, however; even if I had more confidence in the general idea of constitutional limits as a way to hold governments in check, however, I'd still have very little in the ability of the Constitution we actually have to serve as a restraint on the government we actually have.

It's a mistake to think of all the ways that the US government violates the Constitution as merely a concatenation of individual usurpations, because once they're as numerous as they now are the whole becomes something more than the sum of its parts. They cease to be exceptions to the general rule and become examples of it. The fact that the government has claimed yet another power it's not supposed to have does little damage to the Constitution at this point, because periodically claiming new powers it's not supposed to have is itself well-established as an accepted, normal government power. Whether it uses that power to pretend that the Constitution authorizes it to compel the purchase of a product or forbid it is an administrative detail. Whether the ostensible justification is the power to regulate commerce between the states or the power to tax, likewise.

Now, I can understand why the decision to uphold the mandate might be a breaking point for some libertarians or strict constitutionalist conservatives who already abhorred the extent to which the government has expanded, but who had previously retained greater hope than I for a return to significant constitutional restraints on state power. Precisely which straw turns out to be the one that breaks the camel's back will vary from person to person, and given the noxiousness of the mandate as a policy I can understand why it would be worth at least two or three straws for many.

You can- and some people, mostly libertarians, have- make a much sounder argument that the mandate is unconstitutional by arguing that the federal government is supposed to be constrained to a set of very limited powers specifically assigned to it in the Constitution that does not include making people buy insurance. You'd be right, for whatever that's worth.

However, the most numerous and prominent critics of Obamacare, mainline conservatives, can't make that argument without attacking the things they themselves dear. That's likely a big part of the reason so much argument hinged on whether the power to compel commercial activity fell within the power to ”regulate” it- opponents of the mandate could argue that it doesn't without calling the scope of the government's power in general into question.

(There's a purely practical reason to make such an argument, to be sure- it might convince people for whom a more radical one would be a nonstarter- but for the most part I've seen no reason to believe that the average person treating the distinction as important is merely pretending to do so. Hypocritical in some cases, perhaps, but that doesn't necessarily mean being insincere.)

The typical conservative cannot strike wholeheartedly at Obamacare for fear of wounding himself in the process. Conservatives have to insist that acceptance of the mandate is a significant new leap in the unconstitutional powers of the federal government because if it isn't they're left with two possibilities, both unpalatable. Either the mandate and Obamacare more generally are constitutionally legitimate, or a huge part of the existing government isn't. The latter is something most conservatives, whatever their rhetorical pretensions, recoil from.

The Constitution that denies the federal government the power to control or mandate health insurance also contains no warrant for that government to hand out Social Security and Medicare, or impose the vast interventionist regulatory state that conservatives in actual practice typically support no less than liberals, or give welfare to farmers, or control lewd content on TV or the Internet, or throw drug users in prison. Someone who endorses at least some of those things has little standing to declare that THIS is the moment that the federal government's disdain for the Constitution has finally gone too far, when he accepts or outright endorses all sorts of equally dubious laws. If the Constitution authorizes the federal government to pull new powers out of its ass to deal with alleged threats to the nation's welfare, it's no encroachment on the Constitution when the federal government does just that- regardless of whether the “threat” is people without insurance or drug users or people cussing on network television. Many conservatives like to quote Gerald Ford's remark that “A government big enough to give you everything you want is a government big enough to take from you everything you have,” but very few of them take it very seriously because they want so very much.

The Supreme Court's upholding of the insurance mandate is worth lamenting for the attack on liberty and human well-being that it represents, but as a blow against the idea of limited government constrained by the Constitution it means very little. You can't hurt what's already dead.

Statism, insurance, and dependency

I'm back! I apologize for my absence; a combination of personal business, actual work, and my old motherboard's treacherous decision to stop working have been keeping me away from this blog for much too long.

One of the things I've been following in the news is the controversy over requiring employer-provided health insurance policies to cover birth control pills in the face of objections from employers who are morally opposed to birth control, most notably the Catholic Church and other Catholic institutions. I am opposed to laws that make an insurance policy illegal because it doesn't cover everything the government thinks it ought to, so I'm on the anti-mandate's side as far as the substantive policy question of whether or not employer-provided insurance should be required to include contraception is concerned.

My reasons for that belief are already well-expressed in Sheldon Richman's articles on the subject at The Freeman here and here, so I'll not reinvent that wheel. There something else about this controversy worth commenting on, however.

One of the most conspicuous elements of the whole controversy is the conflation of government- mandated provision of birth control by insurance companies with access to birth control, and the lack of such a mandate with actively preventing- or allowing employers to actively prevent- women from acquiring it. (This article at Salon is nicely representative.) This is not surprising, since many people have an extremely state-focused conception of human life and society that elides the difference between not having something provided by the government and forcibly depriving people of it. In this case, however, I think there's an additional factor at work fueling the conflation. Namely, what do Americans typically mean when they talk about health “insurance?”

The purpose of insurance is, or at least was, to reduce risk- you pay a relatively small, predictable cost on a regular basis to protect yourself from the financial consequences of large, unpredictable losses.

In purely dollar terms, this is a losing proposition, since over a lifetime you're much more likely to pay more money than you receive. However, certainty and predictability have value in themselves. Eliminating or at least reducing the risk of sudden, unpredictable losses make it easier to form and execute long-range plans, and of course there are also psychological benefits. Additionally, the declining marginal utility of money means that the difference in lost well-being between a small financial loss and a large one can be many times greater than the difference in dollars.

Now, what's conspicuous when considering birth control pills in light of the above is that it just doesn't make much sense for them to be covered by insurance, especially if they're actually being used for birth control. They are a regular, predictable, and (compared to treatment of many serious illnesses or injuries) relatively minor cost, and the condition they are most commonly used for is highly predictable- being a sexually active female of childbearing age isn't an exotic disease.

That's not unique to birth control, by any means; many medical goods and services covered by insurance share these qualities. There's no risk of financial loss being managed- bringing insurance into the picture just adds an extra pair of hands that the consumer's money passes through before she gets the product. (Or, if the cost is not ultimately borne by the consumer, simply gives a pseudomarket veneer to what is essentially a government welfare benefit.)

This outcome is not the product of a free market, and would almost certainly not occur in one. There are tax benefits to paying employees part of their compensation and health insurance instead of money, so many employers do precisely that. Wages that travel from the employer to the employee to the healthcare provider are taxed, while wages that travel from the employer to the employee to the employer's health insurance company to the healthcare provider aren't, so it makes makes sense to pay for things that aren't really insurable through insurance companies despite the cost of adding a middleman. Some jurisdictions push this further by actually punishing employers above a certain size that don't compensate their employees in this fashion. Once the recent health "reform" legislation goes into full effect, that will become the case nationwide.

Further, every state has a list of things of things that an insurance policy must cover, many of them quite extensive, and policies without them are illegal, so even if you are buying insurance yourself an insurance policy that is limited to actual insurance rather than serving as a middleman for regular healthcare expenses isn't an option. Since insurance coverage is not the magical money fountain many people seem to think it is, this tends to make it more expensive.

And meanwhile, the huge amount of healthcare consumption filtered through third parties combined with huge amount of medical spending paid for by government benefits drives up consumption and reduces sensitivity to cost- and thus incentives to control those costs- by weakening the link between how much a person consumes and how much it cost them. Which makes health care in general more expensive and the cost of treatment for serious illnesses or injuries even more potentially ruinous for the uninsured.

Those are some of the economic effects government intervention has had on healthcare in the United States, which many people have previously pointed out. What doesn't get mentioned much are the cultural effects, which I think are being demonstrated in the birth control mandate controversy. (And in many debates over health care in this country in general.)

In short, health insurance is now seen not as a way of managing the risk of unexpected medical expenses, or even as a way of paying for medical expenses in general, but as the thing all medical care comes from. Insurance is so pervasive in the healthcare system that the two are commonly seen as inseparable, or not even seen as distinct concepts at all. This pervades political arguments for the subject, with having “insurance” routinely treated as interchangeable with having access to medical care.

(Now, if you were to ask someone who thinks this way, point-blank, if it's possible to buy medical care directly, they'll no doubt agree that it is. But being aware of a fact when your attention is specifically called to it is not the same thing as having that fact in mind whenever it's relevant. Similarly, treatment and insurance are implicitly acknowledged as not being equivalent in arguments over the recently passed requirement that everyone buy health insurance, where the tens of of millions of poor souls who don't have proper health care because they can't afford insurance suddenly are able to afford it, and must be compelled to buy it so that they can't continue to leech off of the rest of the country by selfishly dumping the cost of their medical care- which they apparently have been getting, after all- onto the healthcare system. However, the inconsistency is almost never pointed out by anyone in the mainstream, and that bit of doublethink is largely allowed to remain safely sealed away in its own little bubble.)

In this light, the often bizarrely overwrought response to the idea of letting employers who provide insurance choose whether or not that insurance includes contraception- claims that this would interfere with or violate a woman's right to birth control, or that it would mean giving employers control of the medical and reproductive decisions of their female employees, or is somehow analogous to laws outlawing (as opposed to merely not requiring) insurance provision of drugs like Viagra- start to make a good deal more sense. After all, most Americans receive health insurance through their employer, something the government actively encourages and something the typical liberal/progressive supporter of the contraceptive mandate for insurance policies thinks the government should encourage, at least as a next-best solution if single-payer isn't on the table. (If I had a dime for every progressive complaint about how awful it is that this or that employer pays its employees with money rather than a combination of money and insurance benefits, I'd probably have enough money to make this whole issue moot by building my own pharmaceutical plant and just giving birth control pills away.)

In that context, if health insurance and access to healthcare are indeed one and the same, allowing employers to refuse to provide coverage for birth control actually is more or less equivalent to letting employers decide whether female employees are allowed to use contraception or not, and the claim that opposing mandatory birth control coverage is an attack on women's sexual and reproductive autonomy becomes much more defensible. Thus, while I still think much of the rhetoric to that effect is a matter of specifically political assumptions- that something not being done by government equals it not being done, period- a lot of it is probably cultural, and is the product of assumptions that are common among the public in general. Decade after decade, more and more people have been conditioned to think of health care as something that always comes through some sort of bureaucracy, either government or corporate, that stands between the consumers and producers of it, which the consumers of it are often utterly dependent on- and it gets harder and harder for people to imagine getting it any other way.

Breathing is also a privilege, not a right

Whenever the subject of the health insurance mandate comes up, one of the most common- perhaps the most common-  rejoinders directed at people who oppose forcing everyone in the country to give money to the insurance companies whether they want their product or not is to cite the precedent of mandatory automobile liability insurance.

Now, like virtually all statist arguments that take the form of, "If it's OK for the government to do X, it's OK for it to do Y," the desirability of X is simply assumed without argument. (New Hampshire has no mandatory insurance laws for drivers, and has somehow avoided becoming an apocalyptic Mad Max-esque hellhole.) Leave that aside for the now. There are a number of important dissimilarities between the two types of insurances and the mandate laws concerning them that make the analogy dubious, but put that aside for the moment as well.

Suppose they are analogous, such that if mandatory automobile insurance for drivers is unobjectionable then insurance mandate is likewise unobjectionable. For that to be the case, the argument that justifies one must also work as a justification for the other. What is the argument for mandatory automobile insurance?

The stated purpose of mandatory insurance is to prevent people from potentially imposing costs on others by incurring debts to others- lawsuit damages from a collision, in this case-  that they cannot pay. The reason it's generally considered unobjectionable to fulfill this objective by requiring drivers to buy insurance is that operating a vehicle on a government-owned road is, we are told at great length, a privilege and not a right. Therefore, the reasoning goes, it is reasonable for the government to impose conditions that a citizen must fulfill or "agree" to before he or she may exercise that privilege.

This can include things that would be considered unreasonable, unconstitutional, or outright tyrannical if applied to legally recognized rights. No one seriously advocates requiring insurance for possible defamation suits or unpaid child support for anyone who speaks in public or has sex, or making people apply for a government permit and pass a test before choosing what religion to practice, for instance, whereas landatory automobile insurance for drivers inspires little criticism or controversy.

This allows various moral and constitutional inconveniences to go by the wayside when mere privileges are involved. It's why constitutional rights concerning search and seizure and self-incrimination are a dead letter if the police decide, as they have the legal power to do in some states, to hold you down and forcibly stick you with a needle to draw your blood for a blood alcohol level test- you gave your "implied consent" in return for the privilege of driving. It's why, as we've been shown recently, you can be required to submit to having your genitals groped by government agents before boarding an airplane. It's why the federal Terrorist Screening Center can forbid you from traveling by air with the stroke of a pen, legal niceties about due process and bills of attainder notwithstanding.

A privilege, by its nature, is not something you are owed by others, or have a right to demand, or are entitled to possess and keep . It is something someone else has the right to grant or withhold at their pleasure. Privileges are something you must prove yourself worthy of, by the standards of whoever has the power to grant them. They exist so long as they are compatible with the interests and desires of the one dispensing them, and no longer.

So goes the standard justification for mandatory automobile insurance, our supposed precedent for mandatory health insurance. The commonality between the two pointed out by people drawing an analogy between them is that a person without health insurance can also impose a financial burden on others. This aspect of the analogy has its weaknesses. Leaving that aside, however, that's only part of the argument for mandatory driving insurance, and not the most important part. If the precedent of mandatory driving insurance justifies mandatory health insurance, then the activities for which people are required to buy health insurance must likewise be a privilege rather than a right. Otherwise, the analogy falls apart and the argument with it.

You fall under the scope of state automobile insurance mandates by driving an automobile on government roads. You fall under the scope of federal health insurance mandate by being alive. You don't have to actually do anything, beyond metabolizing enough oxygen in your nervous system to not be declared legally dead. The auto insurance mandate is only a relevant precedent for the health insurance mandate if being allowed to live at all is not a right, but a privilege that the government can impose conditions on, revoke, or make conditional on whatever factors those in power deem relevant to their goals for public policy.

I certainly don't think the average person using the auto insurance analogy intends that implication. On the contrary, he'd probably recoil from it if he understood it. Nevertheless, it says something when so many people so readily take something that is the quintessential example of an activity that is not regarded as a right, only a privilege that the government can grant, revoke, or set almost unlimited conditions on, and blithely treat it as analogous to being able to live at all. Though I suppose "being allowed to live at all" would be more accurate.

Who needs the Pinkertons when you have the Democrats?

As has likely been apparent from several recent posts, the aspect of the health care legislation being advocated that I find most interesting is the insurance mandate, which would make it illegal to not have health insurance. If we're lucky, the recent election of Scott Brown in Massachusetts will throw a wrench into the "reform" process, but I'm not getting my hopes up too high. (A good rule of thumb is that if your hopes involve phrases like "If the Republicans are principled and resolute," you're fucked.) In any case, there's another aspect of the mandate that is worth exploring.

One side effect of so many people getting their health insurance through their employer is that it often weakens the bargaining position of employees relative to their employers. For many people, leaving their job- whether by quitting or by being fired-not only cuts off their income, it deprives them of their insurance until they get their own policy or a new job.

The whole point of insurance is to secure yourself against unexpected catastrophe, so losing it can often entail serious costs beyond its monetary value- fear, insecurity, lost peace of mind. This can and often does make the prospect of temporary unemployment more daunting than it otherwise would be. As a result, it can become easier for a boss to cow workers into accepting mistreatment, and harder for workers to walk away from a bad job (or credibly threaten to do so).

Which makes it interesting, I think, that the government does so much to encourage precisely this arrangement, through the tax structure and through various state-level regulations. The government started the practice of getting health insurance from your employer more or less by accident, when businesses competing for workers during the Second World War started offering insurance to workers in order to get around wage controls. It then became encouraged through the tax code, and now it is pretty much taken for granted as the right way to do things.

Indeed, when the supposed of the working man attack this or that business, "They don't give their employees health insurance" is usually near the top of the list of charges. In most cases, I think this is the result of simple ignorance, since the idea that we live in a universe of scarce resources, and that therefore the money to pay for additional employee benefits has to come from somewhere- monetary wages, quality of working conditions, new hiring- is something a lot of people don't really understand.

There's also a contingent, much less common in my experience, that acknowledges the trade-off and is instead motivated by paternalism- workers should not be permitted to sacrifice employer-provided insurance in favor of higher cash wages, because they don't understand what's best for them. (It's always important to remember that most laws framed as restrictions on employers can be described as restrictions on workers with equal accuracy.)

That said, if I've figured this effect out, I find it hard to believe that companies big enough to have some muscle in Washington haven't. Which in turn makes me wonder how much of the political support for the tax code's favoring of employer-provided health insurance over other compensation, and more recently the idea of mandating employer provision of insurance, is motivated by precisely this.

Which brings us to the proposed universal mandate, under which everyone must have insurance. Despite the psychological factors described above, people are sometimes willing to accept the risk of temporarily going without insurance. But once health care is "reformed," being uninsured will be not merely a risk, but a crime. Everyone must pay, either to the insurance companies or to the government in the form of fines. (Which will almost certainly go up if their initial level is low enough that large numbers of people choose to pay the fine rather than hand over their money to the insurance industry.)

The upshot is simple. If you are insured through your employer, the proposed mandate is, in effect, a tax on quitting your job. Like so much that is ironic in politics, it would be funny if it weren't so sick: The people who shout loudest and longest about protecting the common man from the oppression of merciless plutocrats are the champions of measures that will bind more workers to their current jobs and bosses, and will chain you more tightly the more vulnerable, desperate, or impoverished you are.

Next, Democrats to declare spending a quiet evening at home by yourself on Friday night "a form of sexual activity"

Reading a Wall Street Journal article on the proposed insurance mandate (Hat tip: Hit and Run), the following jumped out at me:

Democrats and their allies say that despite its novelty, the insurance mandate falls within the definition of interstate commerce. The Senate bill cites data to show the importance of the health-care industry to the national economy and the damage caused by leaving millions of Americans uninsured.

Requiring the uninsured to buy coverage will "create economies of scale" and "is essential to creating effective health-insurance markets," the bill says.

Republicans argue that while Congress can regulate economic activity, the failure to buy insurance amounts to inactivity -- and the Constitution doesn't give Congress power to regulate that...

Democrats say that failing to buy insurance is a form of economic activity, because it shifts costs to others in the marketplace through higher insurance premiums, and onto the public when the uninsured use emergency rooms to obtain primary care.

Now, the fact that the interstate commerce clause of the Constitution is routinely interpreted to mean that the government can do anything whatsoever is hardly news to me, and this actually isn't all that big a jump. Growing grain on your own land for your own use was declared part of "interstate commerce" in Wickard v. Filburn because growing grain instead of buying it from somebody else affects the overall market price of grain; thus, the idea that abstention from commerce can itself be regulated as commerce is not at all new.

I think the U.S. Constitution is valuable for rhetorical purposes, as a way of pointing out that the government routinely ignores its own supposed laws, but I have little confidence in the idea of constitutions as an effective, lasting check on government expansion. By the time we reached the point where growing grain on your own land for your own use could be regulated as "interstate commerce," the idea that America had a limited government restricted by law to particular functions enumerated in a written constitution became a bad joke.

Despite that, I still find this remarkable for how brazen and explicit this is: Merely existing is interstate commerce. With every moment, you are abstaining from innumerable transactions that you potentially could have engaged in, and each abstention has economic consequences that might conceivably have some effect outside your own state. There is very little in life that doesn't become "interstate commerce" under this principle.

My failure to buy Pearl Jam albums or nonalcoholic beer or Mack Bolan novels has an effect on interstate commerce; if more people bought those things, the greater economies of scale would lower unit costs. If we take the reasoning justifying the mandate seriously, is there any reason I couldn't be required by law to buy these things if Congress wanted me to? The government could give enormous subsidies to favored industries without spending a dime.

Let's take it another step. Each person's decisions on what to abstain from buying are affected by how much money they have, which in turn is affected by what sort of job they have and how much they work. Imagine a worker who has the option to work additional hours for overtime pay but chooses not to, or a highly paid doctor or attorney who hates his job and decides to live a more modest lifestyle so that he can work in a field that is less lucrative but more personally fulfilling, or a mother who switched to part-time work so she could spend more time with the children. All of that affects interstate commerce, so why shouldn't the government tell people where and how much to work?

The previous paragraph may sound rather outlandish; it certainly does to me. That's no bar to plausibility. I can still remember when the idea of the government controlling fat and sugar consumption was talked about as a joke, meant to ridicule the government's attacks on smoking by taking the principle of health paternalism to what was, at the time, an absurd conclusion. Only a decade later, something that was "obviously" silly is now firmly in the mainstream.

I don't claim that the scenario above invariably will happen- and if it does, it's not likely to be that blatant. However, I do believe it is a quite plausible result of the sort of reasoning being used to defend the mandate, not just a wacky reductio ad absurdum; after all, that would require me to believe that there are expansions of state power too obviously silly to be seriously entertained by mainstream American politicians, and if history is any guide that's a losing bet.

I'm sure anyone who is claiming that not buying insurance should be regulated as "interstate commerce" would vehemently deny any desire for a government that can dictate the minutiae of personal consumption described above, much less much less one that controls whether people can change jobs. Most of them would probably mean it, too. That makes no difference at all, once the precedent is turned loose.

Stay classy, America

This doesn't directly impinge on me, since my subnormal conversational skills, palpable insecurity, unsettling lack of eye contact, facial expression, or vocal intonation, and abhorrence of the accursed light of the sun make the threat something of a moot point, but it still caught my attention: Pseudo-nonpartisan political group Rock the Vote has put out a new video urging people not to have sex with anyone opposed to health care reform. (Hat tip: Crash Landing.)

Ironic, really. Whenever I see something in the news about the efforts of liberal statist groups like Rock the Vote, "I wish these people would stop trying to fuck me" are usually the first words to pop into my head.

I suppose straddling the line between socialism and fascism counts as "bipartisan"

The debate over health care has had me thinking about the question of where to draw the boundary between a a private firm intertwined with or heavily regulated by the government and an arm of the state that merely maintains the forms of the private sector. It's been frequently pointed out, correctly, that the obvious purpose of the "public option" is to serve as a Trojan horse for single payer. Even without the public option, though, the "reforms" that seem most likely to pass would effectively eliminate private insurance.

The most frequently referenced issues, now that the public option seems to be out of the running, are the insurance mandate and insurance for people with preexisting conditions. The mandate is basically a payoff to the insurance industry: The government imposes new controls on them requiring them to do things that do not make financial sense if you're actually in the insurance business, and in return the government will force everyone to buy their product. The insurance companies get more money, the government gains greater control of health care, and the benevolent champions of the working man in Washington, D.C. get to impose a large, regressive I-swear-it's-not-a-tax on everyone.

In this scenario, in what meaningful sense is the insurance industry "private" any longer?

The insurers would be government agencies in everything but name, and the insurance they “sell” would simply be a welfare program (albeit one that, like social security, would produce a net transfer of wealth from the relatively poor to the relatively rich) disguised as a commercial transaction. They would exist to serve purposes chosen by the government, their activities would be controlled by the government, and their funding would be given directly to them by the entire population under threat of government force. They would have some internal autonomy and some scope to compete with each other, but that means little to this issue. Even communist countries experimented with letting the managers at state-owned factories make some independent decisions. They'll be about as "private" as a public school district.

The only notable difference, so far as I can tell, is that the people in charge of distributing insurance will be making a hell of a lot more money than your average Department of Health and Human Services manager.

The "uninsured Americans" Trojan horse

One of the main issues that allegedly motivates calls for health care "reform"- be it instituting single-payer, a "public option," insurance mandates, requiring insurance companies to accept all patients or charge the same amount regardless of risk, or some combination- is the problem of people who can't get insurance because they are poor or already too sick to get insurance. The problem, we are told, is that people with preexisting medical conditions can't get insured, and thus are either deprived of medical treatment or are impoverished paying for it. Similarly, people too poor to have insurance let problems fester untreated because of the expense. The extent of this problem is exaggerated greatly, since the most commonly cited statistics lump people who can't get insurance together with people who have simply chosen not to, but it does exist.

As is so often the case, this is a problem with roots in previous government interventions. The tax code and various government regulations encourage people to use insurance for everything medical-related, including routine and foreseeable expenses, which encourages greater consumption and less concern for cost, which drives up the price of medical services, which increases the amount of money the uninsured have to pay out of their own pocket. Another contribution to the plight of the uninsured comes from all the various conditions and treatments the law says insurance companies MUST cover, which outlaws stripped-down insurance polices that would be within the reach of more people.

Fixing that is out, needless to say, since the people who most loudly profess their concern for the uninsured are generally the same people who would scream bloody murder at the thought of people who can't afford gold-plated insurance buying a more modest version they can actually afford. To many people, actually getting the disadvantaged more access to medical care is less important than being able to boast about being the sort of big-hearted idealist who believes the disadvantaged should have access to the best medical care imaginable, and big-hearted idealists don't lower themselves to facing the unpleasant tradeoffs that exist in a world of scarce resources.

It's certainly a plight that ought to inspire sympathy, harming people whose lives are already harder than most. It's not surprising that this issue would loom large in any criticism of the existing system. There's a question that is almost never raised, however: What does any of this have to do with the proposed reforms?

As a libertarian, I think these people could be helped far more effectively and justly through market processes and civil society, if only the government would get out of the way, but what if I were a statist setting out to aid the uninsured? For a moment, let's take it as given that any sort of deregulation is off the table, and that this is a problem that requires a government solution. In that case, the solution to the problem is quite obvious: Set up a government assistance program, funded out of general tax revenues, for people who can't get insurance and have it buy them medical care as if it were an insurance company. It would, essentially, be a “public option” specifically for people who are currently shut out of private sector insurance due to poverty or illness.

Problem solved, and with far less government expense, distortion of the marketplace, inconvenience to the general public, or divisive political acrimony than any of the actual major proposals. There is potential for fraud and abuse, but no more so than any other welfare program and probably less than many. As government solutions go, this is relatively simple, and it's really just a logical extension of things the government already does now. It's modest size and consistency with the precedent set by existing forms of government assistance would make it far less controversial than what's actually being proposed.

Supporters of greater government involvement in health care have other arguments for their program, of course, but the issue of the involuntarily uninsured is simply irrelevant to the question of whether the health care system as a whole needs some sort of radical change imposed by the government. If you're really concerned about a small segment of the population being deprived of a resource and want the government to make sure they have access to it, give them the resource. When faced with the plight of people who can't afford food, liberals generally advocate giving them food stamps or monetary benefits. They don't use the needs of the desperately poor to argue that the government should nationalize agriculture or run Public Grocery Stores to compete with Wal-Mart and Safeway.

This ought to be a political slam dunk, winning support in Congress from every Democrat and many moderate Republicans. Libertarians and some fiscal conservatives might object, but there would be nothing like the storm of controversy that has raged. It wouldn't preclude further legislation creating other government interventions relevant to other problem areas of the health care system if they are needed. If Obama had proposed it upon taking office it would have almost certainly passed already; that is surely a selling point given how frequently we're told that getting help to the uninsured is a dire necessity that must be accomplished quickly, before more lives are lost. The need to help people who can't get insurance is cited by liberal supporters of health care reform more than any other issue, and this would address that problem quickly and without holding the issue hostage to far more intense arguments over proposals for more sweeping government intervention.

There are limitations to my proposed alternative It wouldn't turn every American into a captive customer of the insurance industry. It wouldn't allow the government to turn private insurance into a concealed welfare program where taxes paid to support beneficiaries are disguised as payments to supposedly private companies for their services. It wouldn't give the government greater control over everybody's personal health care choices. It wouldn't create a means for the government to crowd private insurance out of existence altogether.

It would, in short, solve (as well as a government solution can, anyway) the problem that provides the lion's share of the justification for a major increase in the government's involvement in medicine care without setting the stage for the destruction of private sector health insurance and total state control of medicine. And what “reformer” worth his salt would want that?

Let a million death panels bloom

Here's an article from Great Britain about Christine Ball, a woman who had to fight to save the life of her mother, Hazel Fenton, after the government's doctors decided her mother (who is currently still living, nine months later) had only days to live when she arrived at the hospital with pneumonia and decided, over Ball's objections, to deny her food and let her starve to death as part of the hospital's "Pathway" program for the terminally ill. Fenton went without food for twelve days before her daughter was able to convince her doctors to relent.

This only came out in public because Christine Ball was willing to 1. challenge the opinion and expertise of the doctors, and 2. continuously and persistently argue with them until they backed down. I doubt that happens very often, given the quasi-priestly status the medical profession has, so I'd be surprised if this were some isolated incident that came out because it just happened by sheer chance to involve one of the rare people who would speak up. Of course, I'm the kind of awful cynic who wonders if the additional government involvement liberals are advocating in health care now might set the stage for even more government control down the line, and gets suspicious when the police claim that the security cameras in the station just happened to break down and stop recording 30 seconds before a calm, compliant suspect with no criminal record suddenly went berserk and had to be cudgeled to death in self-defense, so perhaps I'm biased.

This is a valuable reminder that the idea that government health care would involve "death panels" is just irresponsible Republican scare mongering. "Death panels" suggests some sort of centralized decision-making body choosing who to dispose of, and carries the implication that such a body would have known, readily identifiable members subject, at least in theory, to public scrutiny and accountability.

Baseless right-wing nonsense! Hospital administrators or individual doctors can decide who isn't worth trying to keep around without bringing the federal bureaucracy into it, and quietly let them die (or kill them outright, Dutch-style) without unduly agitating reactionaries who think there's something bothersome about giving people fatal drug overdoses without consulting their opinion on the matter, or abandoning deformed babies to die, or just killing them, or whatever else wins the endorsement of the Enlightened and Compassionate and Progressive. (I will be shocked if open advocacy of legal infanticide has not become a common, mainstream position among American liberals within the next 20 years, and among moderates within 30.) There's no need for "death panels" or other conservative bogeymen when the staff of your local hospital is already perfectly qualified to decide which people are surplus to the government's requirements and act accordingly.

Hat tip: Crash Landing.

"I prefer 'extortion.' The X makes it sound cool."

At last, an excuse to work a Futurama quote into this blog. I'm stunned that it actually took me three years.

In a recent interview with George Stephanopoulos, (Hat tip to Psychopolitik) Barack Obama was asked to address one of the objections to Obama's proposal to force everyone to buy health insurance. (This is in large part to subsidize the costs of another common liberal goal- forcing insurance companies to insure more people at a loss, thereby turning insurance into disguised welfare. Most of the people uninsured by choice are fairly young, and the old are on average wealthier than the young, so this is a nice example of how much of the modern welfare/paternalist state actually redistributes income upwards.) Anyway, the following words were exchanged:

STEPHANOPOULOS: You were against the individual mandate...

OBAMA: Yes.

STEPHANOPOULOS: ...during the campaign. Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?

OBAMA: Well, hold on a second, George. Here -- here's what's happening. You and I are both paying $900, on average -- our families -- in higher premiums because of uncompensated care. Now what I've said is that if you can't afford health insurance, you certainly shouldn't be punished for that. That's just piling on. If, on the other hand, we're giving tax credits, we've set up an exchange, you are now part of a big pool, we've driven down the costs, we've done everything we can and you actually can afford health insurance, but you've just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that's...

STEPHANOPOULOS: That may be, but it's still a tax increase.

OBAMA: No. That's not true, George. The -- for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.

STEPHANOPOULOS: But it may be fair, it may be good public policy...

OBAMA: No, but -- but, George, you -- you can't just make up that language and decide that that's called a tax increase. Any...

STEPHANOPOULOS: Here’s the...

OBAMA: What -- what -- if I -- if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that's not a tax increase; but, on the other hand, if I say that I don't want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then...

STEPHANOPOULOS: I -- I don't think I'm making it up. Merriam Webster's Dictionary: Tax -- "a charge, usually of money, imposed by authority on persons or property for public purposes."

OBAMA: George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition. I mean what...

Notice how hard Obama works to dodge the question. His entire initial reply ignores it completely; even after Stephanopoulous presses the issue, he tries to focus on his alleged rationale for the mandate and not the aspect of it he was actually asked about. The fact that this sort of rhetoric routinely works is a demonstration of how many people simply switch off their minds when their attention turns to politics. Consider how obvious this sort of evasion would be if it were applied to private life:

JT (Friend of mine, full name withheld to protect the innocent): Hey, where'd you get this high-definition TV?

John: The neighbors bought it a few months ago, so when they were gone on vacation last week I broke into their house and carried it away.

JT: What? You just took their property without permission? Isn't that stealing?

John: Well, hold on a second, JT. For years, we've been missing out on the superior image quality modern storage media make possible because we've been watching a standard-definition television that's nearly a decade old. Now I can play Call of Duty 4 in the resolution it was made for!

And my version doesn't even cover the best part, when Obama kicks things up from mere non sequitur to outright surrealism by arguing that the definition of the word "tax" is not relevant to the question of whether or not the mandate is a tax. A child could see through this in normal life, but in politics it often slips by people.

This puts me in mind of an old movie trope. You've probably seen it at least once: The villain, negotiating with the hero, promises not to kill somebody- one of the hero's friends, for instance- in order to gain the hero's trust or win some concession. The hero believes him, because federal labor regulations apparently require anyone who engages in fictional heroics in a visual medium to drink a bucket of lead paint before they begin their struggle against evil. The villain then says that he only promised that he wouldn't kill the person in question, and orders one of his minions to do it for him while he mwahahas in amusement. In like fashion, Obama's proposed insurance mandate doesn't force people to give their money to the government, it merely forces people to give their money to private companies strongly connected to the government. Completely different!