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Why ObamaCare Has Proved a Hard Sell

Monday, April 9, 2012

It may be that ObamaCare isn’t ‘suitable for framing’ and that there is no way to make the individual mandate intuitively convincing to ordinary Americans.

During a press conference on December 17, 1940, President Franklin Delano Roosevelt justified his highly controversial lend-lease program by offering a simple analogy. When your neighbor’s house is on fire and he comes to you to borrow your garden hose, you don’t say, “Neighbor, my garden hose cost me $15; you have to pay me $15 dollars.” You simply give him the garden hose and say, “I want my garden hose back after the fire is over.”

Roosevelt’s homespun analogy was a spectacularly successful example of what today we call framing an argument. To “frame” an argument is different from merely making one. It is a way of making the argument intuitively and immediately convincing to ordinary men and women. A mark of a great politician is the gift for making his arguments seem like nothing more than mere common sense, as something that should be obvious to all. When FDR framed his lend-lease program in terms of lending your neighbor your garden hose when his house was on fire, he was appealing to a situation to which everyone could relate, and it worked.

The lend-lease program was explicitly designed to aid the beleaguered British in their struggle against the Nazis by supplying them at no cost with “surplus” American military equipment. At the time it was proposed, most Americans were vehemently against entering into another catastrophic foreign war. They feared that land-lease might be the beginning of an entanglement in the European crisis. FDR’s program, they argued, was a slippery slope from which we would slide inevitably into war with Germany.

Roughly 70 years later, President Obama faced a similar challenge: how to sell his healthcare reform program to the American people. Like lend-lease, it was hotly disputed from the start. Many of its opponents were passionately convinced that ObamaCare marked an unprecedented and ominous interference by the federal government in the lives of American citizens. At the root of these fears lay the provision of the program known as the individual mandate. If the government could make us buy health insurance, or incur a penalty for failing to, what could stop it from compelling people to purchase electric cars, memberships in a health club, or, that old favorite, broccoli—indeed, anything at all?

In order to allay these fears, the Obama administration needed to assert that there was “a limiting principle” in the Constitution itself. This principle would set a limit to the kind of things that Congress could compel us to buy. On the constitutional side of this limit would be health insurance. On the unconstitutional side would be electric cars, health club memberships, and broccoli.

A mere 24 percent of Americans think ObamaCare will make their lives better, roughly half of those Americans who view Obama favorably and are by no means his enemies.

The task facing the administration was two-fold. First, they had to convince the courts, including the Supreme Court, that they had a sound and valid argument that established a limiting principle in the Constitution. Second, they had to convince a skeptical public that the new legislation was the right thing to do, just as FDR had convinced the skeptics of his day that lend-lease was right. It was not enough to construct a legal argument that was valid, if it failed to be intuitively convincing to ordinary men and women. The administration needed to frame this argument just as FDR framed lend-lease.

Why didn’t Obama, with his own quite impressive gifts of rhetorical persuasion, find a similarly convenient garden hose to douse the skeptics with? That he didn’t find a garden hose is generally accepted, not only by opponents of ObamaCare, but by its staunchest defenders. For example, in an article entitled, “Don’t Blame Verrilli for the Supreme Court Healthcare Stumble,” Einer Elhauge of Harvard Law School faults the Obama administration precisely for its failure to frame its healthcare reform properly in the first place. If they had done this at the right time, Elhauge argues, the Solicitor General Donald Verrilli would not have stumbled so badly defending it during the oral hearings before the Supreme Court.

Elhauge begins by faulting Verrilli for not pursuing two lines of argument. First, alluding to a series of precedents, all drawn from the first ten years of our nation’s history, Elhauge argues that the Obama administration should have challenged the very notion that there was something unprecedented about the individual mandate. (In fact, the government agreed that the mandate was unprecedented.) Yet Elhauge acknowledges that Verrilli was probably taking “the more cautious route” in not bringing up these precedents, since citing them would have required him to squarely admit that “Yes, Virginia (and Florida), there is a government power to make us buy broccoli.”

Here Elhauge is candidly contending that there is in fact no limiting principle, and thus there should be no search for one. Congress can make us buy it. Yet Elhauge recognizes that this line of defense, far from framing the administration’s argument in a way that would intuitively appeal to the man in the street, would have the exact opposite effect. In fact, this is precisely how the opponents of ObamaCare had already framed their argument.

That is why we have a Constitution in the first place: To put some values beyond the reach of passing political fads and whims, such as personal liberty and the freedom to make our own choices.

Nonetheless, Elhauge offers another suggestion, asserting that “Verrilli had a good alternative argument: although the uninsured might seem like they don’t participate in commerce, they are actually predictably active in the healthcare market because we all get sick eventually, and when the uninsured end up needing medical care, others pay most of the cost. This argument is right on the economics, but it’s dangerous to hang your hat on it, since saying that failing to buy insurance equals commercial activity isn’t exactly intuitive for those without a Ph.D. in economics.”

Here again Elhauge believes he has found an argument that is valid, i.e., “right on the economics,” but by his own admission, it is not an argument framed to appeal intuitively to the average man in the street or, even worse, the vast multitudes of us who lack a Ph.D. in economics. But this leaves the question: If Elhauge, a Harvard professor, cannot find the right frame for ObamaCare, why is he criticizing the Obama administration for its failure to present one?

If any liberal thinker might be expected to find that elusive garden hose, the smart money would be on Ronald Dworkin. In his essay, “Why the Healthcare Challenge is Wrong,” Dworkin attempts a daring end-run around the limiting principle. He takes off from the state of Massachusetts to begin his sprint. “Is there a constitutional limiting principle that would allow Massachusetts to impose that mandate but prevent it from requiring its residents to join health clubs or buy broccoli?” He answers: No, there is none. Massachusetts, and any other state, is under no constitutional obligation to refrain from compelling its citizens to purchase broccoli or raincoats or pogo-sticks.

Though Roosevelt and Taft were ideological opposites, they both understood that it wasn’t enough to have a good idea.

Here Dworkin seems to be taking the same approach as Elhauge. But there is a twist. Dworkin is agreeing that “There is no limiting principle in the Constitution,” but he doesn’t leave it there. To do so would be to surrender to the enemy’s framing of the question. Instead, Dworkin argues that while there is no limiting principle in the Constitution, Americans don’t really need one. They already have a powerful and effective limiting principle in their own hands. “We are protected from silly state mandates not because the Constitution rules them out but because politics does. No state legislature would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe.” He goes on to say, “If we do not need a limiting constitutional principle to stop a state from outrageous economic legislation, we do not need any such principle to stop the national Congress, within its proper sphere, either. The Court can allow Congress, as it allows Massachusetts, to mandate health insurance without finding a constitutional barrier to a national compulsory broccoli purchase. Politics supplies the appropriate check in both cases.”

Dworkin appears to have found the garden hose at last. What is to protect us against the dreaded broccoli mandate? We the people. Because we would never countenance such a ridiculous mandate, we have nothing to worry about. Here at last is an argument that is intuitively appealing and no one needs a Ph.D. in economics to grasp it.

Yet a question remains. If Dworkin has the garden hose in his hands, is he pointing it in the direction he thinks he is?

What is to protect us against the dreaded broccoli mandate? We the people.

We don’t have polls reflecting people’s attitude toward the hypothetical broccoli mandate, but we do have polls about the individual mandate provision of ObamaCare. Over a month ago, on February 27, the USA Today/Gallup poll showed that 47 percent of Americans favor the repeal of ObamaCare, while 44 percent oppose. More remarkably, many of those who want to keep ObamaCare don’t think that it will accomplish much. Only 24 percent of the Americans polled by USA Today/Gallup said that it would make their own lives better, while 34 percent said it would not make much difference and 38 percent said it would make their lives worse. It would appear that Dworkin’s democratic limiting principle is already at work. The problem is it is working to defeat ObamaCare.

But Dworkin has an answer to that. If people are opposed to ObamaCare, blame those horrible Republicans. “The Republican Party and the candidates for its presidential nomination relentlessly denounce the Act, perhaps largely because it was one of President Obama’s main domestic achievements during his first term. They hope that the conservative justices will declare the Act unconstitutional in June, just as the primary season ends and the national presidential campaigns get under way; they think that will help them defeat the President in November.”

Even if we accept Dworkin’s thesis about why the Republican Party and its candidates oppose ObamaCare, and wish to see it overturned by the court—it’s all just party politics—Dworkin still needs to explain why a mere 24 percent of Americans think ObamaCare will make their lives better, roughly half of those Americans who view Obama favorably and are by no means his enemies. He also needs to explain why the USA Today/Gallup poll showed that a startling 72 percent of Americans think the individual mandate provision of ObamaCare is unconstitutional, including a whopping 56 percent of Democrats. Dworkin asserts that the law is “plainly constitutional,” but something is plain only if it is plain to all, and when nearly three-quarters of Americans disagree with you, you still may be right, but you must stop insisting that you are plainly right.

Elhauge argues that the Obama administration should have challenged the very notion that there was something unprecedented about the individual mandate.

The opinion of Dworkin, an eminent authority on the U.S. Constitution, should be weighed respectfully. But as Dworkin himself points out, our ultimate to safeguard against bad or silly legislation is the exercise of democratic politics, where the vote of the expert counts no more than the vote of the average guy. By Dworkin’s own argument, even if ObamaCare is plainly constitutional, the people have the right to oppose it in any way they see fit. They can lobby against it, challenge it in the courts, and vote for candidates who pledge to appeal it, because, according to Dworkin, they and they alone have the final right to decide when and where their government has gone too far. To grant the people this right, and then to complain when people challenge a law in court, as Dworkin does, is a bit puerile. A court challenge is simply one of the various methods by which Americans have traditionally insured that the final limiting principle stays securely in their hands. It is one of the appropriate checks that politics supplies.

Dworkin is to be admired for the candor with which he acknowledges, contrary to the administration’s own position, that there is no limiting principle in the Constitution to prevent an individual mandate to purchase either health insurance or broccoli. According to Dworkin, only an ultra-conservative reading of “the strict and arbitrary language of an antique Constitution” could allow anyone to find in it any limiting principle to the coercive power that Congress can yield over U.S. citizens. It is only when citizens actually resort to politics that they can keep government from pushing too far. But Dworkin’s stand betrays his obliviousness to how ordinary Americans look upon their Constitution, which, in their eyes, may be strict, but which is neither arbitrary nor obsolete.

Dworkin’s most signal error comes from his failure to recognize that it is the American people themselves who overwhelmingly want to believe that the limiting principle is in the Constitution. They want it to be there, plainly and obviously in the Constitution, an eternally mandated check on the ambitions of the state. They want it to be there because they suspect it would be too dangerous to leave in their own hands. They see the Constitution like the breathalyzer ignition lock for the guy who has the bad habit of driving when he’s drunk, but who wants to stop doing it. That is why we have a Constitution in the first place: To put some values beyond the reach of passing political fads and whims, such as personal liberty and the freedom to make our own choices. Ordinary people understand this. Professor Dworkin doesn’t.

There can scarcely be a worse way of framing ObamaCare than to sneer at the average American’s admittedly superstitious veneration of the Constitution. It is their superstition, and Dworkin must first show respect to it before he can hope to convince them of his argument.

It seems that no one has as yet found the garden hose, though it is not for want of searching for one. It may be that ObamaCare, by its very nature, is not “suitable for framing” and that there is simply no way to make the individual mandate intuitively convincing to ordinary Americans. Or it may say something about how our current political elites have simply lost the common touch—a fatal flaw in a democratic society.

It is worth recalling here how Robert A. Taft, the patrician Republican Senator from Ohio and a fervent opponent of the lend-lease program, responded to FDR’s garden hose analogy. He didn’t offer a complex argument. He just quipped, "Lending war equipment is a good deal like lending chewing gum. You don't want it back." Though Roosevelt and Taft were ideological opposites, they both understood that it wasn’t enough to have a good idea. You had to know how to sell the idea in a simple way, easily grasped by ordinary people. This is a lesson that many of our current politicians appear to have forgotten, to their cost and to our own.

Lee Harris is the author of The Next American Civil War, Civilization and Its Enemies, and The Suicide of Reason.

FURTHER READING: Harris also writes “More than Just Broccoli: The Real Slippery Slope of ObamaCare’s ‘Must-Buy’ Provision,” "Double Talk about Double Standards," "Explaining the Santorum Surprise," and "Tim Tebow and the Atheist’s Dilemma." Thomas P. Miller contributes "ObamaCare: Up for Grabs at Supreme Court." Scott Gottlieb says "Meet the ObamaCare Mandate Committee." Michael Barone discusses "The Supreme Court's ObamaCare Surprise Issue."


Image by Darren Wamboldt/Bergman Group.


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