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Why it's fallacious to compare the stimulus bill to, say, reforming the medical care system

By Jack M. Balkin

It is obviously tempting to assert that the quick passage of the stimulus bill (after paying tribute to the unholy threesome of Collins, Snowe, and Specter) adequately disproves my reiterated argument that we have a system that makes it difficult, if not impossible, to confront adequately the challenges that face us, such as getting a handle on our inefficient and unjust system of delivering medical care to those who need it. My view is that it is a big mistake to take much comfort in the quick passage of the stimulus bill (putting to one side whether one approves of everything that was in it, a discussion I have no desire to get into). In many ways, it was an "easy" bill to pass, for at least a number of reasons: a) (almost) everyone recognizes that there is a crisis and that something needs to be done, and fast; b) although the bill no doubt has a lot of consequences, both for good and for ill, in creating incentives for a variety of behaviors, it does not in itself constitute a serious attempt to significantly reform of any important aspect of the American political or economic system; and c) as critics of the bill point out endlessly, it's quite easy to get legislators to vote for programs that shovel money to their constituents and place the burden of paying for the programs on future generations.

So contrast this with reform of the medical system (let alone energy and education, the other two big-ticket items on Obama's agenda). I happen to think our present medical system is part of our "crisis," but I doubt that that is a sufficiently widely-shared reaction. Far more to the point is that any significant change of our present system will require taking on a lot of entrenched interests, beginning with insurance companies, who will do everything they can to retain their share of a lucrative pie. (Just as Obama is unable to accept the increasingly across-the-political- spectrum advice from professional economists to nationalize failing banks, he will, I suspect, be equally unable to support the most rational reform, which is some form of a "single payer" system that gets rid of insurance companies entirely.) And, of course, it may be necessary to raise taxes in order to save Medicare. All of these features make it ever harder to achieve the kind of "complete consensus" between the House and Senate that is a predicate condition for the passage of legislation, especially when one of these two houses ridiculously overrepresents small states and, perhaps more seriously at least in this case--it may be that the issue of medical care is sufficiently universal not to be all that relevant to the large state-small state divided--the ability of a tyrannical minority to prevent bills even from coming to the floor if they can hold their 41-senator coalition together.

I don't disagree with those who say that the Congress should engage in extended deliberation and vigorous debate about the proposed programs. I'm not an advocate of the behavior during FDR's 100 days where the Congress simply passed, without any deliberation, bills they received from the White House. The question is whether a minority in an already undemocraticly constituted Senate should be able to prevent electoral majorities from passing what most Americans believe is desirable, even necessary, legislation.

In more ways than imagined, the next several years will present the most profound test since 1860 of the capacity of our political system to respond to the deep exigencies of the day. I skip the New Deal because, obviously, FDR really didn't have to worry about Republican recalcitrance. He did have to worry about the Supreme Court, whose edict he was prepared to defy had they struck down repudiation of the Gold Clause, but he never had to face that.

Full post as published by Balkinization on February 25, 2009 (boomark / email).