Obamacare: leading America down Rome’s path?

July 31, 2013 | By TIMOTHY SANDEFUR

The theme of this year’s Freedom Fest—at which I spoke about PLF’s ongoing legal challenge to Obamacare—was “Are we Rome?” by which was meant, is America headed down the same path that led to the rise of the Roman empire? At Reason’s website, John Stossel has posted some thoughts on the subject by himself and other attendees. Of course, Americans have been anxiously asking whether they were headed down the same path as Rome since at least the Jackson Administration, and such conversations are a lot like asking what your favorite book is—there’s no real answer; what matters is the ensuing conversation. But there is one way in which Obamacare really does bring to mind some of what happened to Rome. Since our panel ran out of time before I could address it, I want to mention it here.

America’s founding fathers were very concerned that the nation they created might some day die as the Roman republic died. They even had a term, “Caesarism,” for the political technique of transforming military success and democratic popularity into a political machine that redistributes wealth to pacify the populace, and then perpetuates a system of class and privilege that keeps the masses ignorant, vicious, poor, and oppressed. But Caesar’s overthrow of the Roman state was made possible only by a long decline in public confidence in the republic. Moneyed influence and corruption corroded state institutions and created a frustrated underclass ready for a leader who would promise reform, lead them to rebellion—and then seat himself as a permanent dictator. The Gracchi and the Catiline conspiracy represented just such efforts by populist leaders to exploit the poor masses with promises of wealth redistribution. Those leaders were then killed by an increasingly repressive aristocracy that wanted to continue exploiting state power to promote their private economic interests by, for example, blocking free competition. There was no concept of separation of government and economy, just as there was no concept of separation of church and state.

This led Romans to lose faith that their deliberative institutions could resolve political problems. Their solution to political stalemate or “gridlock” was to create some person who would run the state independent of the influence of competing interest groups. This person would be confirmed by the Senate, of course, so he would be, in some indirect sense, chosen by the people—but he would then rule without any significant democratic accountability. That was how Sulla was made Rome’s first dictator—“dictator legibus faciendis et reipublicae constituendae causa,” he was called: “dictator for the making of laws and for the settling of the constitution.” That was the model that Caesar imitated.

That pattern—where the people conclude that the democratic assembly can’t resolve political problems and that the only solution is to create an independent leader who will be vested with the lawmaking powers—has been the template which many such autocratic leaders have followed. Napoleon, for example, schemed to have himself chosen by the French senate on the grounds that it had reached stalemate, as well. As James Madison wrote in Federalist 51, you can try to cure the “mischiefs of faction” by “creating a will in the community independent of the majority,” but this is “a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.”

Now, look at the Independent Payment Advisory Board—the portion of Obamacare that is being challenged in the case of Coons v. Geithener. IPAB is an independent agency of bureaucrats chosen by the President and confirmed by the Senate, who will set Medicare reimbursement rates throughout the country—and which, as explained in our brief in that case, makes “recommendations” that automatically become law without any legislative, judicial, or executive checks and balances.

Following up on other “independent agencies” like the Sentencing Commission at issue in Mistretta v. United States or the “independent prosecutor” at issue in Morrison v. Olson, Congress set out in the Affordable Care Act to make IPAB the most independent agency ever established—free of judicial review, immune from Presidential control, and not only protected against Congressional interference, but (at least in theory) placed outside Congress’ power even to repeal the law creating IPAB. IPAB’s bureaucrats—should any ever be appointed—will have power, not only to set reimbursement rates, but to make whatever “recommendations” they think are “related” to Medicare—and those “recommendations” automatically become law. And according to the Patient Protection and Affordable Care Act, there’s virtually nothing that can be done about it. And if IPAB bureaucrats are never appointed? Then those powers are exercised by a single person: the Secretary of Health and Human Services. As Timothy Jost, one of Obamacare’s most well-known supporters, has acknowledged, the law explicitly bars IPAB from “rationing” care, but in the end, that prohibition isn’t really enforceable, and if IPAB chooses to exercise the full sweep of its powers, it will become what Jost calls “the Platonic Guardians” of medicine. Even Howard Dean acknowledged in the Wall Street Journal this week that IPAB “is essentially a health-care rationing body.”

Obviously this provision in the health insurance law isn’t the same thing as the Roman Civil War. That’s not the point. The point is that at heart, this principle is the same: Congress created IPAB in order to wash its hands of the difficult task of democratic deliberation and government. Instead, Congressional leaders chose to give away their powers to an independent entity that would exercise power without accountability, because they no longer believed in resolving those issues in the open, through persuasion and mutual agreement. That principle is exactly what led to the death of Roman freedom. And that was why the American founders chose to create a Constitution with separated powers and strong checks and balances, and why they believed that “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”