Bad political philosophy can kill you

Political philosophy sounds abstract and nerdy, but it is inescapable. If you have any political opinions, then you have a philosophy and are probably acting in accordance with it. Administrative regulations are even more boring. Recent developments in the administration of ObamaCare – are you bored yet? – show how much it matters. The prevalence of one philosophy over another, within the federal bureaucracy, makes a huge difference to millions of people.

ObamaCare includes subsidies for low-income workers who have employer-provided health insurance. The subsidies become available if their premiums exceed 9.6 percent of their income. But the IRS interpreted that threshold to be based on the cost of self-only coverage, even if an employee has dependents whose coverage costs much more.

A Minnesota woman named Allie Krueger, for example, lost her job and found herself dependent on her husband’s insurance. They badly needed the coverage because she was pregnant with twins, one of whom had a condition that would require surgery. They ended up paying a quarter of their income for the insurance, draining their savings. This gap in the statute, which affects more than 5 million people, became known as the “family glitch.”

This is the kind of technical problem that, in a normal Congress, would routinely be repaired by legislation. But Republicans are unwilling to do anything that makes ObamaCare work better. Part of the explanation is pure political gamesmanship: As their initial opposition to the law showed, they are willing to leave massive national problems unsolved for the sake of short-term political gain. The deeper reason, as I explained in my book on the first constitutional battle over the law, is bad philosophy — a rigid libertarianism that opposes nearly everything government does.

That became clear the last time Republicans held both houses of Congress and the presidency. There were serious conservative criticisms of ObamaCare and responsible Republican proposals to maintain broad coverage using more market-friendly mechanisms. President Trump had promised not to take away anyone’s health care, and to replace ObamaCare with something more generous and cheaper. His voters, many of whom depended on the law, believed him. But the House Republican leadership was compelled by its libertarian wing, whose votes were indispensable, to embrace far harsher proposals. All of them would have taken insurance away from at least 20 million people, and most would have used the money saved for massive tax breaks for the rich.

Sen. Rand Paul (R-Ky.) and then-House Freedom Caucus chair Rep. Mark Meadows (RN.C.) explained their objection to any subsidies at all: “families will be given up to $14,000 dollars of other people’s money.” The opposition backfired, because the House bill was too draconian for the Senate to stomach, ObamaCare remained in place and the issue helped the Democrats retake the House in 2018.

Here’s where the political philosophy matters. The “other people’s money” complaint is based on a corrupted variant of liberal political theory. That variant has its roots in the 17th century philosopher John Locke, who famously argued that people have a right to the fruits of their labor, and enter society in order to protect their liberty and property. Leading libertarian philosophers such as Robert Nozick and Murray Rothbard claim to follow his arguments.

Libertarians tend to forget that Locke thought property exists so people can preserve themselves. Everyone has “a title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise.”

Someone who won’t sell food to the starving because they can’t pay his price, Locke wrote, “is no doubt guilty of murder.” He was thinking about food, of course, but death is death, however caused. The inability to afford life-saving medical care is the functional equivalent of starvation. So a society that can afford to provide everyone with basic medical care is in the same moral position, with the same proviso limiting property rights, as a society with enough food for everyone.

As I explain in detail in my forthcoming book on libertarianism, property rights have to impose reasonable obligations on everyone, and no coherent theory of property can entail that some people must accept a distribution that kills them and their families. (A further question, which takes us into modern political philosophy, is whether working people should reasonably have to impoverish themselves if they have a sick child.)

As it happens, the Biden administration figured out a technical fix for the glitch – and invited Allie Krueger (along with former President Obama) to watch as he signed the executive order. “I ended up getting teary-eyed,” she said afterwards. “We’ve been having to cut costs in a lot of places, so we are excited to be able to start saving money again instead of, you know, like trying to live paycheck to paycheck.”

It is a sad comment on the state of American politics that this could not have happened during any imaginable Republican administration. One former Trump official has complained, on the basis of a decidedly contestable reading of the statute, that the fix should have come from Congress, but no Republican Congress would have done it either.

If there’s anything that libertarians hate more than redistribution, it’s government bureaucrats quietly cooking up new regulations. But here, those regulations are the reason why Krueger could afford medical care for her baby. Does that feel like tyranny to you?

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.

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