Friday, May 20, 2011

Argumentative Tunnel Vision

-- Posted by Neil H. Buchanan

[Special Note: In yesterday's post, I summarized an analysis of the so-called Ryan Plan, the at-least-temporarily-abandoned Republican plan to replace Medicare with a voucher system. An analysis of that plan showed that the country's overall (private plus public) costs of medical care would be either 5 or 8 times higher than current costs -- even taking into account the direct reduction in government spending on Medicare -- depending on the underlying assumptions. That translates into total increased costs through 2084 of $20 trillion or $34 trillion, in net present value terms, as the price of abandoning publicly-funded and -managed Medicare. My original post, which I have now corrected, stated those numbers as $20 billion and $34 billion -- billions, not trillions. I was only off by three orders of magnitude. No biggie.]

On Monday, Professor Dorf pointed out a strategic blunder by the Obama Administration in defending the Patient Protection and Affordable Care Act. In oral arguments in the 4th Circuit, the Administration's lawyer argued that the Commonwealth of Virginia lacks standing to challenge the law in court. Virginia has passed a law claiming that its citizens are not subject to the federal law in question, which means that the state's sovereign interests would be arguably harmed if the federal government tries to enforce its mandates in violation of the state law. Obama's lawyer argued, inter alia, that Virginia's interests only extend to defending its right to regulate its citizens lives as it sees fit, but not to its right to guarantee that its citizens would be free from regulation. (I realize that my summary here is imperfect. Those who find this too quick and dirty should consult Professor Dorf's analysis.)
As Professor Dorf pointed out, this argument is the mirror image of -- which is a polite way of saying "completely inconsistent with," or "diametrically opposed to" -- the Administration's argument on the merits of the "individual mandate." The Administration argues -- quite persuasively, in my opinion -- that the Commerce Clause allows the federal government to regulate an individual's decision not to buy health insurance, because not buying health insurance has an effect on interstate commerce, by shifting the ultimate costs of health care for the uninsured onto everyone else. The activity/inactivity distinction that the health care law's opponents have invented, therefore, is meaningless.
While one could probably find some space between the Administration's position on standing and its position on the Commerce Clause, any difference is narrow at best. More to the point, the Administration missed an opportunity to hang the label of inconsistency on the other side. Instead, it defaulted to mindless gainsaying of each argument with which it was presented. Engaged in the heat of litigation, it apparently never occurred to the lawyers that one argument undermined the other.
Now consider the raging debate about the debt limit. The Administration's conservative opponents want to use the necessity of raising the debt limit to extract concessions from President Obama regarding yet more spending cuts. The Obama people respond that reaching the debt limit would be an economic disaster. This week, we officially reached the debt limit, and -- completely as expected -- the Administration began to juggle the books to put off the day of reckoning by a few months.
The response from many on the right was to say, "See, you said that we were going to bring about Armageddon, but nothing happened. Ha!" (The Daily Show on May 18 included some hilarious footage of cable news coverage of the news that we have hit the debt ceiling.) Having been told that they were irresponsibly risking economic collapse, the anti-government zealots now gleefully claim vindication.
On the merits, the obvious response is that no one ever said that the economic catastrophe of hitting the debt limit would happen this week, but only when the opportunities to juggle the books have run out. Let us, however, set that aside. The broader implication of the Right's claim that hitting the debt limit is no big deal would be that hitting the debt limit is no big deal. If they are correct, then they lose their leverage in the debate over the budget. Their entire strategy revolves around holding the economy hostage, forcing Obama to bend to their will rather than see the world collapse in chaos. If the debt limit means nothing, that strategy has no teeth.
Of course, politics often seems to be about nothing but shifting positions opportunistically. The Republicans who fiercely defended the Bush administration's right to secrecy, for example, now (as anyone could have predicted) are harassing the Obama administration to release all kinds of internal information about a campaign-finance issue, and Democrats are reborn believers in the value of government confidentiality. Republicans who insisted that cutting executive compensation would drive out the best people turned around and claimed that cutting teachers' salaries and benefits would have no such effect. The parties conveniently switch positions on the merits of filibusters.
Other than being the subject of a devastating series of juxtaposed clips on The Daily Show, however, does any of this matter? In many -- maybe even most -- cases, the answer is probably no. People expect political positions to be fluid and opportunistic. Even so, it is easy to see the damage from being tunnel-visioned or inconsistent, in some important instances. Newt Gingrich said this week that anyone accurately quoting his remarks criticizing the Ryan Plan would be lying, but there is no reason to believe that this pathetic response will have its desired effect.
More broadly, the Republicans who voted for the Ryan Plan are doing everything possible to make it go away, but they will surely be haunted by their votes through next November. (The Democrats will make sure of that.) The Administration's inconsistent positions in the 4th Circuit could have bad effects, both in the court (where unsympathetic judges will use the standing argument to undermine the Commerce Clause argument) and especially in the political realm, where the public is already skeptical of the Administration's position.
The shifting positions on the debt limit will probably not have the same impact on the ultimate outcome, however, because the Administration correctly understands that there really is a disaster in store for us, if we do not raise the limit. Scoring political points by highlighting the other side's inconsistencies does not change that underlying fact. It would be wonderful for the Administration, and even more for actual liberals, if the debt limit did not matter. Unfortunately, it does, and the anti-government forces are hell-bent on using that to their advantage.