The law as a symptom of a broken political system
In an April 2012 episode, attorney Larry Klayman, founder of Judicial Watch and later of Freedom Watch, told Bob Zadek that Obamacare would probably be declared unconstitutional, but that Republicans were not unhappy about its passage because it gave them a political issue in 2012. He said they played a rope-a-dope, protested, and did nothing really to propose an alternative to what Obama was trying to pass, and that the American people are left and given short shrift while the two parties enrich themselves Who’s Looking Out for Us? (2012). Zadek had opened the segment by describing Freedom Watch as having no clear political orientation, neither Republican nor Democrat nor Libertarian, and by saying its mission was not to promote a political agenda but to clean up the muck.
The Kagan recusal controversy
Zadek introduced the next segment by noting that Klayman had written on Obamacare but with a different spin from other commentators, and had gone into court over the role of Justice Elena Kagan, whom Klayman believed should not be participating in the deliberations Who’s Looking Out for Us? (2012). Klayman said Kagan had been the Solicitor General, the top lawyer of Obama’s Justice Department, had helped advocate and push Obamacare, and had done legal analysis about whether in her view it was constitutional. He said Obama chose her to be a Supreme Court Justice because he was packing the court and knew he would need a vote close enough to sustaining the legislation as constitutional. Klayman said that rather than doing what other federal judges would have to do under the Code of Judicial Ethics, she refused to recuse herself and continued to sit on the case, and that Freedom Watch filed a motion to have her either recuse herself or be disqualified.
Klayman also said Chief Justice Roberts, who he said comes from the lobbying law firm primarily of Hogan & Hartson, issued an annual report saying that Supreme Court Justices do not have to follow the rules of ethics of other judges in the federal system, that those rules may be unconstitutional, and that they are picked through a stringent system of vetting where their integrity is proven to be beyond reproach and do not have to sit in judgment of fellow judges. In Klayman’s characterization, Roberts was saying the court is above the law and belongs to the justices rather than to the American people. He said the Supreme Court and Obamacare and Kagan tell the whole story, and that there is no Supreme Court that represents the American people.
How government entered healthcare
In an April 2013 episode, Zadek argued that Obamacare would die of its own weight and that the first question about healthcare is why government is involved at all. He compared healthcare to food and clothing, which are crucial but for which there is no federally mandated delivery and payment system, and said it is somewhat insane to have decided that a private delivery system with market-based pricing does not work for healthcare. He said that prior to World War II the healthcare delivery system was 100% private, with no Medicare, Medicaid, or mandated anything, and that the system worked pretty darn well We Are All Libertarians (2013). Judge Jim Gray responded that we had the best healthcare system in the world.
Zadek attributed the first government entry to World War II wage and price controls, under which employers were not allowed to give raises and so asked Washington to let them give free healthcare insurance as a benefit; government agreed and made it tax-free, the only benefit an employer could give an employee that is not taxable to the employee. He said the second leg came in the late 1970s, when the federal government passed a statute requiring hospitals not to turn away from emergency rooms anybody simply because they could not afford it. Gray added Richard Nixon’s wage and price controls in the early 1970s and Lyndon Johnson and Medicare as further steps, and said that today one can get really good quality healthcare for reasonable competitive prices in LASIK eye surgery and cosmetic surgery because the government is not involved. Gray proposed that government spend money on doctors, medicines, hospitals, and nurses instead of administration, bureaucracy, and fraud, with people who cannot take care of themselves going to a government clinic probably on private contract similar to Kaiser Permanente, and said the federal government should not be involved in this at all.
The effect on doctors
A September 2013 episode with Dr. Jeffrey Singer, a general surgeon in Phoenix and an adjunct scholar at the Cato Institute, was framed by Zadek as addressing the effect of Obamacare, Medicare before it, and all the government intrusions into the marketplace for medicine on the doctors and providers of healthcare services, a side of the story he said had drawn almost no discussion in the general media Will Americans Accept Second Class Medicine? (2013). Zadek said the conversation would cover how Obamacare and Medicare before it affect doctors and how that will affect patients. Singer said he had been in private practice since 1981.
Repeal, replace, and the individual market
In a September 2017 episode, Zadek told Austin Petersen, an announced candidate in the Republican primary to run against Senator McCaskill in Missouri, that he had always felt the Republicans made a profound mistake by adopting the phrase repeal and replace, because the shock of a dramatic piece of legislation is often scary to most Americans. Drawing on the Articles of Confederation and the Philadelphia convention, Zadek said the Republicans would do better to say let us fix Obamacare, that everybody agrees it needs fixing because it is garbage legislation, terrible, doomed, and in a death spiral, and that once you get together to fix it the fix will be to repeal and replace it. He predicted it would probably never be repealed and never be replaced, but fixed and fixed and fixed, and would end up repealed without the label Federalism and the Flat Tax: The Austin Petersen Plan (2017).
Petersen said he completely agreed that from a public relations standpoint it is problematic to say repeal and replace and that he tried to avoid it, though people sometimes use the shorthand when he offers something like competition across state lines. He said his health insurance had been canceled twice, that a month earlier he had received a message that he could no longer purchase insurance in the individual marketplace with his current plan, and that instead of paying $411 a month next year he would probably have to pay $700 a month or even more. He said he sincerely feels the nervousness the American people have about what is happening with their healthcare, which is why he believes it is imperative to get some reform.
Petersen offered eye surgery as an example, saying it is not covered by most insurance plans and that over the last 10 years the cost of getting your eyes fixed has come down and the quality has come up, from something like $10,000 or more plus follow-up care to about $500 an eye, because of competition. He said there is no perfect system, that the promise of universal coverage is a lie, and that a doctor from Canada invited onto a radio show by Bernie Sanders admitted that the wait to get care can sometimes be up to a year. He said if it were legal for people to purchase inexpensive health insurance plans like catastrophic plans, prices would come down generally and more people would be able to get more care for less cost, and that too many people confuse health insurance with healthcare. He said it is time to repeal Obamacare and to stand with conservatives in the Senate like Rand Paul and Mike Lee, and that the problem is liberal Republicans who promised to repeal Obamacare, voted for it when Obama was president, and have flipped now that they have the authority and the power to do so.
Across episodes
The topic recurs in 2012, 2013, and 2017, but the excerpts show no single developing argument so much as a shift in emphasis: Klayman in 2012 litigates Kagan’s recusal and predicts the law will probably be declared unconstitutional; Zadek in 2013 predicts it will die of its own weight and traces the intervention to World War II; Singer in 2013 addresses the effect on doctors; Petersen in 2017 speaks from the individual market and from a Senate campaign. The free-market example of eye surgery appears in both the 2013 Gray episode and the 2017 Petersen episode, advanced by Gray and Petersen respectively.
What the sources do not cover
The excerpts do not state the outcome of the Freedom Watch motion against Kagan, nor how the Supreme Court ultimately ruled on the law. They do not give the name of the late-1970s statute Zadek describes, the date or holding of any case, or the fate of the 2017 repeal effort. They also do not state the name of the Canadian doctor or the program on which he appeared.