This weekend's events in Aurora, Colorado are tragic, senseless, and, I think, should make us all very angry on two fronts.
Where are our cultural leaders daring to speak out about the glorification of violence that, in deeply sad irony, was on the screen as backdrop to the killing and wounding. Dark Knight is only one, the latest, of a long line of films, videos, and "games" that trivialize the pain and destruction that guns inflict, in some subtle way making us all feel that gun-play is normal and even fun. While we may not be able or want to "ban" such violence, we don't have to culturally aggrandize it...the commentary in the entertainment news about how much Dark Knight's first weekend box-office take was going to be now leaves me feeling sick. I understand and support the notion of freedom of expression involved here, but we don't have to permit the manufacturers to promote violence as entertainment. Just like it's now illegal for tobacco to advertise in most media, we could make the advertisement of gratuitously violent fiction subject to considerably more stringent limitation. But even more important, our cultural leaders (high among them being our 24/7 media) can help to make that violence very "uncool"...just like most young children these days find smoking a nasty, anti-social act. It takes time, and leadership, but it's not impossible to gradually change mentality on this.
And where are our political leaders, at all levels of government, calling for us to do something more...maybe much more...about the accessability of these deadly weapons. That the Aurora murderer apparently acquired his arsenal of guns and ammunition and explosive devices legally is eloquent in its condemnation of our existing legal restrictions. These situations are of course the work of insane people...but people who did not display their deadly insanity in advance to put the world on notice. the University of Texas Tower sniper, Columbine, Viginia Tech, and now Aurora quickly come to mind and in each of these, and far too many others, the insane person was able to wreak so much death and destruction because of guns. If we can't prevent the work of madmen, at least we can make it much more difficult for them to do so much harm.
Today, President Obama visited the wounded and consoled many of the families of those who lost their lives. As always, he spoke with passion and moved us with his calls for recovery from this sadness and his confidence in the goodness of the American people. But I was greatly disappointed that he didn't take this ocassion to move beyond the role of Consoler in Chief. I hoped for, and even half-expected, him to move from that tone to close on a tone of righteous anger, saying something to this effect:
"It is now time...it is now way past time...to get serious about truly effective gun control in this country. That the shooter in this tragedy acquired his weapons "legally" tells us there is something terribly wrong with what is "legal" in our land. I know of course that there is Constitutional protection for the use and possession of firearms, but I also know that the Second Amendment has important limiting language about "a well-regulated militia..."as the basis for that protection, and our Constitution embraces many compromises and balancing acts. The current situation regarding guns is clearly out of balance.
I am aware of all the arguments against more effective gun control; some of them have some merit. But overall, I believe the American people are no longer convinced. I believe the American people are ready to strike a new balance. I believe the American people should hold all their leaders accountable to make significant improvements in public safety from gun violence. The right to expect that public safety is at least as important as the many other rights our governments go to great lengths to protect. We've fallen far too short here. We must make this better!
I pledge the balance of my term as President...and my next term if the people give it to me...to do everything I can to lead Congress to enact legislation and to insist that every department of my Administration does everything in its power to reduce this blight on our country. For example, I will redeploy some of Homeland Security's TSA army to help prevent this horrible domestic terrorism which has done so much more harm to our country than any foreign terrorists have been able to accomplish. If it takes a Constitutional amendment... and it might...I pledge to you that I will do everything I can to bring that about."
Alas, he didn't say that or anything like it. That leaves it to Governor Romney to depart from the agenda of one slice...maybe a small one... of what people identify as his "base". The American people are, I'm convinced, ready for some brave leadership on this issue. Like Johnson on the Civil Rights legislation, like Nixon in his opening to China, like Clinton on welfare reform, it may take the perceived tribune of the status quo to achieve a real breakthrough. Please Mr. Romney, be your own man; do the right thing...even if it does cost you the prospect of being elected. You may just be surprised. There are many people out there, at every point of the political spectrum, hungry for a man of principle to step forward on this. Be that man!
Sunday, July 22, 2012
Sunday, July 1, 2012
Solving the Health Care Mess: an Update
I've recently reviewed what I wrote on this topic more than two years ago (Solving the Health Care Mess, March 3, 2010), and am even more convinced that I was onto the right combination of solutions. This past week's Supreme Court ruling on the consitutionality of The Affordable Care Act validates several of my concerns then and now, but still leaves unfulfilled a comprehensive result that only legislatures and executive leadership can give us.
First, as a lawyer and student of and great admirer of our Constitutional system, a few comments on the Supreme Court ruling itself and its immediate political aftermath.
First, the tax should used to directly solve the problems of "adverse selection" (being a free-rider until you actually need the medical coverage). Insurance works, in every realm, where people buy it because they want to protect themselves from an unaffordable financial consequence, or are forced to do so, well in advance of ever needing the coverage. The most sucessful homeowners insurance situation is never actually having your house burn down, or losing your roof to a storm, or suffering other major calamities. So, if we're going to tax free-riders, we need to make the tax big enough to actually motivate the desired action. Not many healthy young people are going to volunteer to buy a $5000 or more insurance policy merely to avoid a $1000 tax. Assuming that a small tax, all by itself, will prompt appropriate, but more expensive, societal behavior is naive. Most people will make the rational economic decision to pay the small tax until they actually need the more expensive insurance. So, the "free-rider" situation doesn't go away until the tax is as stiff or stiffer than the cost of the insurance. And, then, with that tax revenue, the government should actually buy the insurance coverage (thru 3rd party commercial insurers) that the taxed individual never got around to doing him or herself. That would put everyone in the same third-party intermediated, individual choice of care situation.
Pre-existing conditions coverage, covered medical exams, etc. can all be part of the mandated coverage. "Buy it yourself or we'll buy it for you with money we'll take out of your pocket! And if you're too poor, so we can't tax you, we'll give you a voucher you can only use to buy it. But, however you get it, once you've got it, you're on your own to use it wisely". With everybody in that insurance pool, healthy and sick, young and old, actual premiums would likely come down. And, they could come down much more if the realm of covered costs made more sense.
So, even more important that getting to universal coverage is to change what is covered. This will take lots of leadership and a patient effort at re-educating the public, but the most significant change would be shifting the insurance mentality from "first dollar" to "last dollar" coverage. Some grandfathering of existing beneficiaries (eg, for those already in the Medicare system) and some gradualism, maybe over decades, will no doubt be necessary, but the ultimate solution is to put individuals in charge of their first dollar costs so that competition among providers and careful prioritization by consumers applies to medical care as it does to everything else. To my thinking, the " much better" would be a tax rationalized individual mandate used to purchase catastrophic, not basic, insurance coverage, with the tax cost on a par with the premium cost of such coverage. Putting people squarely in control of... and insisting that they take financial responsibility for...their everyday and elective medical care needs, but as a society making sure that catastrophic, non-elective costs don't bankrupt individuals through universal insurance against that risk, will be the real revolutionary solution to the mess we have now.
First, as a lawyer and student of and great admirer of our Constitutional system, a few comments on the Supreme Court ruling itself and its immediate political aftermath.
- I was very pleased to see the Court's strong majority (7 - 2) upholding a key element of federalism (the respective sovereignties of the States and the federal government) by voiding penalties imposed on States which do not participate in certain Medicaid aspects of the law. The core genius of our governmental system is in limiting the risk of too much power lodged in any one branch or level and in reserving to the States those aspects of governmental power that are likely to have the most immediate impact on most people. Most of the evolution of this power balance has been from the States to the federal government over many, many years, but it's gratifying to see the Court come down strongly on the notion that there are still some limits on the exercise of power on the federal level.
- I was also pleased to see the majority (though only 5 to 4, here) rejecting the notion that the "individual mandate" was a valid exrcise of the Commerce Clause power. While we learned in law school years ago that the federal government's power to pre-empt State regulation of inter-state commerce is almost without limit [Europe should have taken an important lesson here that commerce among sovereign entities needs some central arbiter to avoid protectionism within a single national entity...but that's something for another post at another time], it was encouraging to see the Court draw the line on that power to void an attempt to impose affirmative duties on individuals to engage in a commercial act that they otherwise choose not to do. If it were legitimate to base the individual mandate on a Commerce Clause notion, that notion could justify the federal government's requiring individuals to do just about anything. On the federalism theme, nobody doubts that the States have such power to compel action; the issue was whether the federal government had any basis for exercising it.
- So, the mandate was declared constitutional (a different 5 to 4 majority) on a theory that the Administration and slim Congressional majorities denied was at work when the law was passed in 2010. Words matter; theories and rationales matter. If the only basis for the mandate's constitutionality lies in the undisputed power of the federal government to tax individuals for reasonable(whether wise or unwise) purposes, then the political establishment must live with that reality. Calling it a "penalty" or "fine" simply won't work...and is frankly disrespectful of the Court's decision and of the people's strong desire for less spin, more transparency in government. The American people...with most of them in the center... are smart enough to grasp these distinctions and I don't think they'll let the Democrats get away with wanting to have it both ways.
- And, the Republicans, so far, are missing the most important part of the message they can respond with. The American people...at the center...are also not going to be comfortable with a strident "Repeal, Repeal, Repeal! solution. Their message should quickly emphasize it's next thought..."and replace with something much better!"
First, the tax should used to directly solve the problems of "adverse selection" (being a free-rider until you actually need the medical coverage). Insurance works, in every realm, where people buy it because they want to protect themselves from an unaffordable financial consequence, or are forced to do so, well in advance of ever needing the coverage. The most sucessful homeowners insurance situation is never actually having your house burn down, or losing your roof to a storm, or suffering other major calamities. So, if we're going to tax free-riders, we need to make the tax big enough to actually motivate the desired action. Not many healthy young people are going to volunteer to buy a $5000 or more insurance policy merely to avoid a $1000 tax. Assuming that a small tax, all by itself, will prompt appropriate, but more expensive, societal behavior is naive. Most people will make the rational economic decision to pay the small tax until they actually need the more expensive insurance. So, the "free-rider" situation doesn't go away until the tax is as stiff or stiffer than the cost of the insurance. And, then, with that tax revenue, the government should actually buy the insurance coverage (thru 3rd party commercial insurers) that the taxed individual never got around to doing him or herself. That would put everyone in the same third-party intermediated, individual choice of care situation.
Pre-existing conditions coverage, covered medical exams, etc. can all be part of the mandated coverage. "Buy it yourself or we'll buy it for you with money we'll take out of your pocket! And if you're too poor, so we can't tax you, we'll give you a voucher you can only use to buy it. But, however you get it, once you've got it, you're on your own to use it wisely". With everybody in that insurance pool, healthy and sick, young and old, actual premiums would likely come down. And, they could come down much more if the realm of covered costs made more sense.
So, even more important that getting to universal coverage is to change what is covered. This will take lots of leadership and a patient effort at re-educating the public, but the most significant change would be shifting the insurance mentality from "first dollar" to "last dollar" coverage. Some grandfathering of existing beneficiaries (eg, for those already in the Medicare system) and some gradualism, maybe over decades, will no doubt be necessary, but the ultimate solution is to put individuals in charge of their first dollar costs so that competition among providers and careful prioritization by consumers applies to medical care as it does to everything else. To my thinking, the " much better" would be a tax rationalized individual mandate used to purchase catastrophic, not basic, insurance coverage, with the tax cost on a par with the premium cost of such coverage. Putting people squarely in control of... and insisting that they take financial responsibility for...their everyday and elective medical care needs, but as a society making sure that catastrophic, non-elective costs don't bankrupt individuals through universal insurance against that risk, will be the real revolutionary solution to the mess we have now.
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