On Defending the Individual Mandate: Why getting to the meat of the issue is categorically the wrong approach to the argument

While much discussion and hang-wringing has ensued after hearing Solicitor General Veriilli's lacking performance in defending the individual mandate to the Supreme Court, a far deeper issue lurks beneath these arguments that needs to be discussed and resolved.  There seems to be an orientation and approach to arguing cases like this, where at least a part of the argument is based on tangible issues and practical outcomes.  For instance, in this case, part of the argument included the real-world ramifications of the current state of affairs, as well as projected outcomes and distribution should the mandate be upheld:

 

[General Verrilli] Rates, for example, in New Jersey doubled or tripled, went from 180,000 people covered in this market down to 80,000 people covered in this market. In Kentucky, virtually every insurer left the market.

And the reason for that is because when people have that guarantee of -- that they can get insurance, they're going to make that calculation that they won't get it until they're sick and they need it. And so, the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer -- insurance covers fewer and fewer people until the system ends.

In too many liberal and progressive circles, there seems to be a belief that practical solutions to complex problems are germane to the Supreme Court and the Constitution.  Simply put, they are not.  General Verrilli should have never ventured down this avenue of defense, as it has simply nothing to do with the Supreme Court's job with respect to its decision making powers.

Let me clarify what I mean by this: As we all know, the Constitution is a foundational document. It is a framework for laws to live within. It conveys power as well as creates boundaries and limitations on powers.  As a result, the Constitution is, by design, completely blind to the specific issues at hand, as all frameworks are. Using a biological analogy, if the Constitution is the legal skeleton, our nation’s laws are the meat.  The meat is where the taste, nutrition and variety come into play.  The meat is what drives opinions on what tastes good or bad, what is overcooked or undercooked, or over-seasoned or not.  Very few people have strong opinions on the skeleton... it doesn't have a specific taste; it’s just there to keep the meat in place.

Solving complex social problems are supposed to be -- by design -- handled by Congress, and signed into law or vetoed by the President. And only when these passed laws don’t fit within the framework setup by The Framers do the courts get involved to judge if the law (i.e., the meat) lives within the framework (skeleton) or does it protrude beyond.

The court's job is to keep the meat from protruding beyond their skeleton -- it’s akin to avoiding a legal hernia.

It is understandable that liberal and progressive lawyers and policy wonks would not see this kind of clarity. In prior decades, the Supreme Court (and lower courts) were in fact actively getting into the meat of matters and acting as practical practitioners of legislation (i.e., Roe v. Wade and Bush v. Gore). Frankly, it’s understandable why the high courts would actually prefer to wade into the meat of matters -- we all see what happens when the “blind eye of justice” allowed Citizens United to prevail over campaign finance reform.

This wading into prescription and policy around the meat of the issues by the Supreme Court has led to a rebellion in the shape of the “strict constructionist” movement within the conservative arena.  It's a movement where justices have clung so tightly to each fragment, and have so much reverence for the original document's specificities and details, that it works against the very notion of the Constitution being a living document, designed specifically to be interpreted based on evolving contexts.

While all of this is understandable, it doesn’t make it right.  What seems clear to me as we look at the ultimate design of the American system and rules of governance is that both sides have it wrong to a large extent:  The right approach is neither the liberal/progressive prescriptive arguments over “what works best for America” in a practical way, nor is it “strict constructionist” ideology that treats the Constitution more like religious scripture than a framework. Rather, it's about establishing a clarity of thought and purpose around the Constitution as a legal framework that laws are tested against.
 
The Constitution (and its protectors -- the justices) should not actually know if a particular law is right or wrong for the nation.  However, the Constitution and its protectors can and should apply the multiple (and sometimes, competing) dimensions of the skeletal framework to new laws that try to manage contemporary societal and national issues and challenges. Which means that arguments to the Supreme Court need to have the focus and discipline around constructing arguments based purely on the orientation and position of the meat within the skeleton -- while staunchly avoiding discussing the details and ramifications of the specific meat in question.

The same discipline should be adopted and upheld by the Supreme Court justices. Ultimately, there will always be left- and right-leaning justices. But the difference between them should not be what it is today -- practical problems-solvers vs. strict constructionist.  It should be justices that give different philosophical weight to varying dimensions of a fairly comprehensive framework document that, by its very nature, needs to be interpreted by human beings to ensure the meat of the issues are contained within the protective skeleton of our democracy.

A Problem for "Progressives"

A recent NPR article What Americans Do for Work outlines a troubling trend for "Progressives" and a "told ya so" moment for Conservatives.   Over the past 40 years, the shift of employment has moved from making things to governing things.  Meaning, government workers are now the highest percentage of workers in America.

Now, there are plenty of caveats that ensures this is not nearly as bad as the report shows at face value:  Total percentage who work in Government services, in fact, is down over the past 40 years.  It's just that it's higher than any other category.  Also, this Government slice includes military, and we know that's been a boom industry over the past 10 years.

But the troubling sign for "Progressives" (I'll get to why I keep putting this term in quotes soon enough) is that while traditional building-type jobs have shrunk due to economic hardships, it shows how resilient government jobs are to change.  From a raw unemployment perspective, this is actually not such a bad thing.  But from a responsiveness to reality perspective, it does show that government just doesn't live in the "real world" -- it exists in a bubble that just doesn't respond to dynamics like other industries.  Which means it's just not going to be setup, aligned, or managed to support contemporary situations.

Ultimately, this is not a Progressive problem -- Progressivism should be based on progress -- progress toward fairness, equality, and ensuring opportunities are available to those who don't get a head start based on birth right alone.  Progressiveness should have absolutely nothing to do with who solves this problem.  It doesn't have to be government.  It just so happens that today's Progressives tend to link government solutions with progressive outcomes.

And before Conservatives jump on this like kids on candy, let's all remember that the overall percent of people who work in government and military has actually gone down in total (which is pretty remarkable considering how much larger a country we are now), and most of this industrial slump is a result of an unfettered free market system working hard to weed out inefficiencies.  Many of those inefficiencies just so happen to be American citizens.

Democrats usher in new era of freedom and security (at the expense of constitutionality?)

Note: As you read this, you may be tempted to call me partisan or left-leaning.  However I respectfully ask you to withhold the urge to slot me into a simple political perspective as you read through this.  This analysis is my best attempt to look at the health care reform bill on the merits and demerits, with my personal bias towards proactive problem solving, as well as my bias for effective leadership.

While certainly full of problems that come with any large initiative or legislation that enables substantial change, the expansion of access to health care for Americans will, indeed, spread freedom and security throughout the land.  Here's how:

• By outlawing pre-existing conditions, Americans will have more freedom to leave insurers, change insurers, and select insurers. 
  
• Americans will be free to tell the truth about their pre-existing conditions (instead of lying about not having any so that they can have insurance). 
  
• Americans will be free to leave or change employers, and choose from a larger swath of employers (esp. small businesses).  Thanks to serious tax-payer subsidies, more people will be able to afford insurance without needing it to be an employer-based benefit.
• Just like our military uses our tax dollars to ensure our security and safety, so will this legislation.  The military is all about keeping us alive and free.  So will this health insurance reform legislation.  As a country, we've time and time again decided that our tax dollars are well worth our safety, security and freedom.  This is no exception.
  
• Americans just got a new "benefit" just for being an American.  Just like any good employer provides good benefits to its workforce, a good country delivers good benefits for its citizenry.  

However, it's not all butterflies and roses.  Unlike prior "social justice" measures that progressives have led throughout history, there is a serious liberty loophole in the legislation as I see it:  The individual mandate, which forces Americans to buy insurance or else get fined by the government, may be unconstitutional.  At a minimum, it's unprecedented:

Never before has a federal law forced a citizen to buy a product from a private company.* 

(*as far as I know -- if you know of precedent for this, please add to the comments below)

Democratic defenders will typically respond to this critique with the question: "How is that any different from being forced to buy car insurance?"  Well, in two ways, but only one is important:  No American is forced to buy a car.  The secondary reason is that car insurance mandates are regulated at the state-level, not federal.  Ironically, if the so-called "public option" were part of this legislation, I don't think there would be a constitutional issue at hand.  After all, there is a lot of precedent of the government forcing Americans to buy things from the government.  So, with a public option, an American would merely be forced to buy something from the government -- which is far closer to a tax than anything else.  But this compromise that forces Americans to buy something from a private company really seems constitutionally troubling, and is philosophically at odds with a mainstream view of the reach of government.  

But is this the right legislation?  Well, we can look at almost anything and pick it apart.  Give me an hour, and I'll give you two hours of critiques of any organization out there, their products, their services, etc.  Everyone's a critic.   Regarding this bill specifically, outlawing pre-existing conditions is tricky business for an insurance company from an actuarial perspective.  And mandating that all businesses with 15 or more employees offer health insurance will have a heaping spoonful of unintended consequences in the shape of the rise of temporary workforces.   And the fact that it doesn't substantially affect the cost or delivery of health care seems like a pretty big miss. 

Of course there are better ways to solve this problem than this bill prescribes.  But there are better ways to do just about anything.  And if you have ever worked with or in a large organization, you'll know from your own experience that large organizations require large compromises to get anything of substance done.  Large projects never launch on time, and never include all the things that should be in there.  There are often too many competing priorities, limiting the 'perfection' of almost anything, and instead focusing on the important bits that keep you just competitive enough to compete another day.  So, while this legislation is far from great in terms of its elegance and ability to reform health care cost and delivery, it certainly accomplishes meaningful progress in the tactical-yet-important-to-many-people spheres of access and affordability (via subsidies). 

In short, this legislation is not a "government takeover of health care" as the Republicans have so effectively mis-portrayed the plan over the past year.  Rather, it's a real expanded role of government -- an expansion that adds new responsibilities to the federal government for ensuring that its citizens have access to the care needed to keep themselves alive. 

You may or may not think this is the proper role of government.  You may think this will help or hurt our economy.  You may think that socially funding access is bad for the economy.  You may even be with me in thinking that its specific implementation could prove to be unconstitutional.  In one way or another, these are all debates that we've had over the past year.  But what is not debatable is that this legislation will enable new levels of freedom of employer choice, new levels of insurance provider choice, and new levels of health security for Americans.

Democrats: Just don't pretend you're not squeaking health care reform through

Democrats can sometimes be like Republicans and not realize how their approach to getting what they want can be seen as so brazen by those who don't buy into what they're doing.  Case in point: Health care reform bill passage.
 
Yes, the Dems did get a 60-vote majority in the Senate last year.  This 'officially' gives the House something to sign-off on and then send to the President to sign into law.  But, the 60-vote majority only came by literally buying off Senators and states with all kinds of unsavory deals.  Yes, I know -- unsavory deals are part of the legislative sausage making.  But these deals are really shabby.  Needless to say, without these deals in place, there would not have been 60 votes. 

Yet, there are 60 votes to work with.  But the House doesn't much like the sausage they are being delivered, so they want to modify it, improve it, and make it more tasteful so that they can get re-elected, too.  Unfortunately for Democrats, the nature of the Senate has changed and there will no longer be 60 senators ready to pass any new provisions the House introduces.

So, the Dems are stuck.  But not procedurally.  They have a solution.  It's perfectly legal and legit, but it's a procedural solution that feels like the back-alley way of getting to the next intersection.  Yeah, you'll get there.  But it won't be pretty, and it certainly won't be in style.

So, here's how it's going to work: The House will hold their noses, cross their fingers, and pass the smelly stinky, Senate bill as it stands today.  The President will sign this into law, and then the Senate will use a process called reconciliation (a straight majority process designed to tweak budget-level items, but not designed to set policy) to address all the concerns the House had with the bill they just passed -- including getting rid of all the give-aways and smellier parts of the bill that they just passed.  Reconciliation requires a straight majority vote: 51/49.  Much easier to pass than the super-majority votes for policy.  Once Reconciliation is done, the latest and greatest health care reform bill will be good to go. 

In other words, Health Care Reform 2.0 will be released within hours or days of 1.0.  This may be the fastest re-release in legislative history.

The end result will look very similar to the plan that President Obama introduced in February.  It will be better than the original Senate bill, but it will take the equivalent of legislative whiplash to get it there.

The Dems are pretty stoked that they can work this out.  And their fans are pretty happy that the Dems are finally ready to play to win.  But when the Republicans "play to win," Democrats cry foul.  This is hypocritical.  Most people would not be very surprised to see Republicans be as scrappy and savvy as feasible to win -- that's part of their brand.  But Democrats like to think of themselves as higher-order people -- people who don't have to play games to win.  In the case of passing health care reform, Democrats may be playing by the rules, but so did the Bush Administration when they made their case to go to war with Iraq. 

Reading the signs

The media generally wears political bifocals... they can see clearly only when they fit into the pre-determined focal lengths: left vs. right, Dem vs. Pub, big vs. small, partisan vs. bi-partisan.

While this creates clarity and surety (attributes that people prefer in our cultural narratives), it doesn't always serve us well.  Sometimes, there are complex dynamics at play -- dynamics that are "messy."  And when political reporting skirts these complexities, we get the equivalent of listening to music in "mono" (vs. stereo), or watching a television show in black & white (vs. color).  We lose critical dimension that tells us a lot more about what we're observing. 

In the most recent incident of this bifocalization of politics, the narrative has been painted opportunistically by the Republicans that, well, Democrats are back in power... and look at how they spend your tax dollars!  

And Obama and the Democrats fell into the that brand trap so easily and readily, it's almost as if they hadn't been aware of their brand problems regarding spending and taxes over the past, say, 40 years. 

So, predictably, the media "reports" what the Republicans decry, and with no meaningful counter-narrative from the Democrats, the dye has been cast in the media's eyes: Obama's popularity is fading because of how he mishandled the health care reform debate, and that he didn't focus enough on "jobs, jobs, jobs."

But, there is a lot more color around the politics du jour than is being painted.  There are many sources of social noise that simply can't be located when listening to politics in mono. 

What is really at issue here is a trend that has been tragically under-reported:  the economic shift that started in the early 1990s and continues at a rapid pace today:  the globalization of the economy.

"Outsourcing" has been the evil mask we're affixed to this overarching dynamic.  The populist media found an easy, comprehensible target and flooded our national narrative with outsourcing as the evil face of globalization.

Yet the outsourcing of jobs to developing countries is merely one facet of globalization's impact.  The more systemic and troubling development (at least, for America) is that with capitalism, markets tend to become more efficient, and find equilibrium.   And as we continue to embark on global capitalistic endeavors and trade deals, America's disproportionate high standard of living is rubbing up directly against standards of living that, on average, are far, far lower almost anywhere else in the world.

The result?  In an open, transparent market, America's standard of living is guaranteed to be reduced in the face of open competition from lower standard of living regions and countries.   We as Americans -- especially the politically potent of us -- are hooked on affluence.  We believe as a culture (many religiously) that we are destined and chosen to live more secure, happier, plush lifestyles simply because we are American.  

But since the early 1990's, reality is creeping up on us.  Our global economic and moral hegemony is on the decline, and all we can really do is just hang on and try to delay the slide for as long as possible.

Which is why we have become so gosh-darned conservative and economically imbalanced over the years.  Avoiding an uncertain and unflattering future is a conservative stance.  And while most people would never articulate their fears and concerns the way I just did, I believe that people intuitively understand what's going on.  But what they are doing politically is the equivalent of putting their fingers in their ears and screaming "la la la la la!" so as not to address these issues head-on.  Because no matter what we do, the issues are going to reduce our standard of living for a long time -- and possibly permanently.

The irony is that a decline in our aggregate lifestyle will be the best thing that ever happened to this country.  Our country has become a singularly-focused culture on wealth, wealth creation and wealth protection.  This is quite unhealthy socially, and we are seeing the results of this social obesity throughout our system.  People are much richer, yet much less happy.  People have less time to enjoy life.  Parents have less time to raise their children.  Americans are becoming historically obese and overweight.  Our culture of convenience has made us generally more lazy, and less fulfilled.  And it can't existentially or morally be fulfilling when the affluent feel increasingly victimized by taxation as they turn a blind eye toward the plight of the poor and working class. 

Nevertheless, nobody wants to slide toward less affluence, less protection and less economic freedom.  Yet that is where we're heading.  And it's because of this macro-social-economic trend that President Obama is having a difficult time running the country.  Wall Street, realtors, small and large businesses alike are all on the lookout and grasping for the next scheme they can latch onto on the way down the economic slide -- any scheme that will prop them up long enough so that they can cash out and surf the decline in relative style. 

You can't really blame these people and institutions for trying to scour the system for a few last-minute jackpots.  It's the natural thing to do.  And you can't really blame our political leaders for not being honest with us about the situation at hand (who would win on that platform?).   But I'd argue you can blame the media for not making this the narrative that we all need to discuss and chew on as a culture.  At length.  Only after mainstream America understands and comes to grips with the future will we have the fortitude to look for political leaders who will need to deal with the future as it's going to be -- not sell us a lie about our future.

I want to point out that I am not being a pessimist.  I believe very strongly in the power and capability of Americans to innovate and create new, unprecedented value in the global marketplace.  And I believe that our military might will keep the country quite relevant on the global stage.   But our ability to innovate and create new economic value has very little to do with the global lifestyle equilibrium being so out of whack for so long.  With global trade, the equilibrium will inevitably slowly converge, with developing countries trending up toward average, and America trending down toward average. 

This trajectory will be very good for the people in the world.  More people will be lifted out of poverty as a result.  We are embarking on a historic transfer of wealth from America and The West to developing markets. And it's happening through the free markets and increasing trade -- not some socialist agenda.  

The iSlate of the Union: Jobs v. Obama

In celebration of January 27 being a tremendously important day for both Steve Jobs and President Obama, Slate recently published a cute mash-up of Steve Jobs giving the State of the Union address.

This article led to a conversation I had with some friends around the importance of marketing, communications, (and frankly, hype) when it comes to not just consumer marketing, but political marketing.

A prevailing view in this conversation was that if Barack Obama would only frame his initiatives like Steve Jobs does, he’d be enjoying much more success after his first year in office.   Further, there was a strong belief that President Obama needs to demonstrate the kind of leadership that Jobs is famous for displaying at Apple.  In other words, if Obama were to lead like Jobs, then Health Care Reform would be as successful as the iPod.   In other words, Obama’s policies need to “just work.”  

There are a lot of similarities here, and I think there are plenty of politicians that can and should learn from successful marketers like Jobs.  However, I am not convinced that passing “progressive” policy like health care reform is anything like selling an iPod.  Similarly, creating progressive policy is nothing like developing any hi-tech gadget. 

Creating and passing progressive policy requires a different type of leadership, because the dynamics could not be more different:  With policy, you are forcing people to buy something.  With product, you are asking people to buy something.  True, if more policies were developed with the 'ask' mentality, they may have a higher chance of succeeding.  But politicians in Washington know that, unlike an Apple project that is under wraps for years, making policy is pretty transparent, and allow Americans to weigh in on the design mid-way through the process.  That of course has the effect of modifying the product and veering away from the original goals.   In other words, in order to make a legislative iPod, one would have to change the rules of law making. 

Another difference between iPods and progressive policy is that, time and time again, progressive policy sets a course into new territory, and forces everyone to be part of the journey.   Not surprisingly, many who benefit from the status quo have no interest in mucking with success.   And if the majority of Americans benefit from the status quo in health care, good luck getting them to buy an upgrade.   Whereas if Apple gets 10% of a given market, it’s a huge commercial success.  10% approval ratings for health care reform would be seen as a complete flop.

None of this, however, excuses Obama and the Democrats for completely mucking up the health care reform process.  They let themselves lose the public debate on the merits, and, worse, allowed themselves to fall into the 'means to an end' mentality that sent the policy off the rails, and gave their opposition much spark by crafting deals that resemble Mafia payoffs more than legislative horse trading.  

A year ago, Barack Obama was inaugurated with a feel of Apple-like fanboydom surrounding him.  Within that year, he "saved" the economy and the auto industry, and lost that argument with the majority of Americans.  Soon, Jobs will be unleashing his latest achievement that has been years in the making, where he will likely be heralded as saving the publishing industry, just like he did the music industry with iTunes/iPod.  

Seems to me that President Obama could learn a thing or two about publicity and story shaping from Jobs as they do seem to have a few things in common.

Progressives and their Long View

As President Obama's popularity dwindles from its highs not just a year ago, I am struck by an observation I have of many liberals and progressives that seems to be shared by Obama:  the preference to focus on the future over the now.

And it's not just focus -- it's language, philosophy, and orientation.  The progressive in us is the consummate planner; the part of us that looks to give up something now (time, resources, opportunities) in the hope of netting returns greater than the investment in the future.  

One might call progressives "social investors" if one were a savvy marketeer. 

Yet, investing is easier to do when it's you putting your own goods on the line to invest in your own future.  Starting a business, investing in the stock market, investing in your child's future or well-being... these are investments that are fairly easy for each of us to make.  Yet it gets a bit trickier when you're looking to commit 300 million people to a shared investment strategy.

And this is what President Obama is staring down right now -- a nation that is generally not too happy that he's planning their investment strategies for them.  Be it Wall Street bail-outs, auto sector bail-outs, or even health insurance reform, a large swath of Americans just don't trust Government to invest for them. 

Which brings me to some advice for President Obama (because we all know he reads this blog) and progressives at large:  While you might be morally, ethically and strategically connected to investing for a brighter future, a large majority of Americans live in the now, care first-and-foremost about the now, and need to believe you share their interest in the now.

This means that while you plot and plan your social investment strategies, plans and policies, you cannot forget that the majority of people aren't there with you.  They're here.  And they want to believe their leaders see the world they see, and live in the world they live in. 

Conservatives have the opposite problem, of course -- they live almost exclusively in the now and aren't big on social investment projects.  They gain popularity readily because of this dogmatic pragmatism -- it's frankly the easier pill to swallow of the two philosophies. 

Neither philosophy has exclusive rights to being perfect, of course.  They both need to be balanced against each other so that we don't exclusively focus on today, and yet don't give up all of what we have today in exchange for tomorrow.   But what surprises me about the otherwise-savvy Obama is that he has put precious little effort into portraying his administration as one that cares deeply about today, and is carefully balancing it against the needs of tomorrow.

There's no doubt that the bulk of his campaign was all about investing in tomorrow, but the market collapse in 2008 (the same collapse that likely got him elected) trumped almost everything he was running on.   I'd make the case that he hasn't calibrated his message or policies enough to fulfill the evolving needs of a nervous nation that feels systemic economic change afoot, and really isn't sure where we're going to fit in when things eventually settle down.

People feel quite unsettled out there, and health insurance reform isn't the medicine they're looking for right now.   That will come as soon as they feel secure again in a job that doesn't have good enough health insurance.