In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there that the plaintiffs will and should lose that argument. A terrific amicus brief by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side. Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion. Read more
My colleague Pat Lynch alerts me to some of the best analysis yet on the pick your metaphor unraveling of Obamacare. It comes from Sven Wilson, Director of BYU’s Public Policy program. I can do no better than send you to Wilson’s post that argues Obamacare has fundamentally transgressed the primal law of activist government, that is, instead of concentrating benefits and dispersing costs it has, well, done the opposite. Mancur Olson’s work prominently figures into Wilson’s analysis.
Such arrogance, such belief in the power of behavioral economics, rational planning, progressive ideals, egalitarian dreams, who knows what lead them to believe that millenials, millenials of all groups would subscribe to Obamacare and provide a crucial pool of revenues to fund the sick and aging. And then there is the additional concentration of costs in the cannibilization of the individual insurance market, and the belief that this would go happily unnoticed as productive middle-class Americans now are forced into more expensive plans they never sought. It is enough to make a fellow realize that ideological fads come and go but dispersed knowledge and local decision-making are forever.