David Corbin & Matthew Parks
January 8, 2014
Three months after the Obamacare insurance market officially opened, many Americans find themselves in an unwonted game of chicken with the Administration, wondering just what exactly their real health insurance options are.
Imagine, for example, three people–call them Kathleen, Harry, and Nancy–who got Obamacare insurance cancellation notices last October. Kathleen, nervous and responsible, immediately hits healthcare.gov to make sure she has insurance on January 1. On her twenty-third visit to the site, she manages to sign up for a "bronze" plan that costs only 43% more than the catastrophic coverage she had before.
Harry, on the other hand, is too mad to think about getting insurance. He writes letters to the president and his local congressman and fills the comments section of rose-colored NYT articles ("Most Obamacare Promises Mostly Kept") with lots of ALL CAPS remarks ("PERIOD!!!!").
By the time he has vented, the president has come through, announcing that Harry's old insurance company may reissue his old policy, at least for another year; it does and Harry, on the advice of his physician, resolves to forget about health insurance for a while.
Poor Kathleen, meanwhile, tries to figure out if she can get her old insurance back. But while she's investigating, her state insurance commissioner rejects the Obamacare "fix." She spends Thanksgiving in a less-than-thankful mood.
Nancy's cancellation notice gets buried for a month and a half in a pile of accidentally unopened mail. By the time she finds it, the "fix" has been announced, but she can't benefit either: her insurance company decides it can't reissue a policy on four week's notice that it has spent a year planning to replace.
Nancy's first visit to healthcare.gov goes better than Kathleen's but, unable to decide which plan to choose and busy getting ready for Christmas, she delays. Nicely done, Nancy, as the president announces that people whose insurance was canceled can buy catastrophic plans after all if they fill out a thirteen-page "hardship" application.
Kathleen's Christmas Eve is spent re-re-reviewing her options with a mug full of eggnog (and a bottle of Wild Turkey) nearby. At every stage, those who behave the best receive the worst.
The principle of the rule of law becomes considerably less abstract when one considers, even somewhat whimsically, the toll in recent months on the time, energy, and morale of perhaps millions of Americans by just two "adjustments" to a single law. Replay the story from the perspective of the employer or health insurance executive and a new set of trials and troubles arises.
The principle of the rule of law becomes considerably less abstract when one considers, even somewhat whimsically, the toll in recent months on the time, energy, and morale of perhaps millions of Americans by just two "adjustments" to a single law.
But we all know that the Affordable Care Act was written in a hurry and voted on before it was read. And we all know that President Obama needed to do something to stop his approval rating freefall and make up for his broken promises. No one is angrier (except perhaps Harry) for the trouble it caused Americans, but we'll work through the kinks and then everything will be okay.
The problem, however, is more fundamental. Both intellectually and practically, Progressivism makes the rule of law impossible. Obamacare is only a dramatic instance of a very common problem.
Let us grant that the President and his subordinates mean well in every on-the-fly revision of the law–that they ignore the letter to promote the spirit and move closer, they hope, to their good ultimate goals. But where do they get the moral, not to mention legal, authority to exercise such raw power? Here we would do no better than to turn to the work of Oliver Wendell Holmes Jr., the most powerful purveyor of legal realism in the late 19th and early 20th century.
In his famous 1897 Harvard Law Review article, "The Path of the Law," Holmes explains that there is no logic to the law in the "traditional" sense: it does not reflect in any meaningful way a constant standard of right or set of moral absolutes. Rather, the "path" of the law is historical in nature, weaving and winding through changing cultural norms and varying political circumstances. Thus judges (and now executives) who alter the law by fiat only hurry along the next stage of progress.
Stripped of its philosophical pretensions, Holmes's doctrine is a thin veil for the age-old teaching that might makes right. But among his set of Brahmin Progressives, there was nothing to fear.
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men.
By the middle of the twentieth century, there was plenty of evidence (starting with two world wars and the horrors of Soviet communism) that the "moral development of the race," as Joseph Conrad had warned, could run in two directions–and that political leaders liberated from the restraints of the rule of law were far more dangerous than the laws they set aside.
Nevertheless, Holmes's progressive followers, down to our former constitutional law professor president, remain confident in their ability to land on the Right Side of History without any help from nature. The rule of law, one of the first consequences of the principle that "all men are created equal," is of no concern in implementing the Affordable Care Act, as long as healthcare is more affordable.
But even that goal may prove unattainable. The practical problem for Progressives is that the egalitarian programs they imagine cannot be actualized by human beings on this earth–and, because of Obamacare, people are starting to notice. Consider just one obvious limitation: Is it really possible for the American government to guarantee affordable healthcare for 320,000,000 people who, on average, eat worse, exercise less, and yet, through advances in medical technology, live longer than previous generations? It's a fatal conceit–one too often repeated in progressive social planning–to deny that something has to give.
The American founders had a deep appreciation for the tragic in political life–and therefore did much less to add to it than our progressive ruling class. They knew that the law could and often did go wrong, but they knew that leaders unconstrained by the law would do worse. Thus, Alexander Hamilton counseled his fellow statesmen in Federalist 25 against adding unnecessary constitutional restrictions on the national government's military powers:
Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.
Prideful and too often selfish leaders must have a "sacred reverence" for the law, lest their folly or their vices make the people suffer the consequences of their arbitrary decrees. But it is almost as important for the (even self-proclaimed) virtuous, whose actions contrary to the rule of law punish good deeds and chip away at the best citizens' energy and respect for self-government.
Hamilton argued that you shouldn't write a Constitution you can't follow. That goes for laws too. Obamacare cannot work as written or as modified by any imaginable executive decree–and every attempt to fix it does even more harm to our republic than it does to our healthcare system.
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