Well, this is it. Today is your last chance to enroll in a medical insurance plan under ObamaCare. There will be no exceptions, other than people who haven't yet enrolled. And if you don't have insurance, you will pay a penalty. Make that a tax. Unless the tax would be a hardship in any way, in which case just don't pay it and the IRS will be totally cool.
The New York Times, in a story by Sheryl Gay Stolberg and Robert Pear, offers this evaluation of ObamaCare so far:
The online insurance marketplace in Oregon is such a technological mess that residents have been signing up for health coverage by hand. In Texas, political opposition to President Obama's health law is so strong that some residents believe, erroneously, that the program is banned in their state.
But in Connecticut, a smoothly functioning website, run by competent managers, has successfully enrolled so many patients that officials are offering to sell their expertise to states like Maryland, which is struggling to sign people up for coverage.
The disparities reveal a stark truth about the Affordable Care Act: With the first open enrollment period set to end Monday, six months after its troubled online exchanges opened for business, the program widely known as Obamacare looks less like a sweeping federal overhaul than a collection of individual ventures playing out unevenly, state to state, in the laboratories of democracy.
"Laboratories of democracy" has grown into a cliché, but it was born, 82 years ago this month, as an argument. A look back at the original context, a U.S. Supreme Court case called New State Ice Co. v. Liebmann, shows how out of place is the Times's invocation of the idea in connection with ObamaCare.
It started when the company took Ernest Liebmann to court for selling ice without a license in contravention of an Oklahoma statute. The fine for illicit ice-mongering was up to $500 a day, the equivalent of some $8,500 in today's dollars.
 
The law's purpose was not to ensure that ice sold to the public would be safe and suitably cold but to freeze the market in place. The statute stipulated that the Oklahoma Corporation Commission could issue ice-selling licenses only after a hearing at which "competent testimony and proof shall be presented showing the necessity for the manufacture, sale or distribution of ice, or either of them, at the point, community or place desired."
By a vote of 7-2, the court held in Liebmann's favor. "The Frost Case is relied on here," Justice George Sutherland wrote for the majority, citing a 1929 precedent that had nothing to do with frozen water. The justices held that the regulations were "unreasonable" and "arbitrary": "There is nothing in the product that we can perceive on which to rest a distinction, in respect of this attempted control, from other products in common use which enter into free competition, subject, of course, to reasonable regulations prescribed for the protection of the public and applied with appropriate impartiality."
The court applied a 14th Amendment doctrine known as "substantive due process," under which it had invalidated a series of state and local regulations. In dissent, Justice Louis Brandeis argued against that doctrine:
I cannot believe that the framers of the Fourteenth Amendment, or the states which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts.
To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.
Brandeis, a Woodrow Wilson appointee, was arguing for what was understood as a progressive position: that judges should allow states a relatively free hand in regulating business. He prevailed in 1937, when the court, in West Coast Hotel Co. v. Parrish, upheld a state minimum-wage law, reversing a 1923 precedent. The court abandoned its practice of scrutinizing economic regulations under substantive due process.
 
Justice Brandeis Corbis
But Brandeis was more skeptical of federal power. In 1935 he joined Chief Justice Charles Evans Hughes's majority opinion striking down the National Industrial Recovery Act, a New Deal regulatory scheme, in Schechter Poultry Corp. v. U.S. Brandeis didn't write an opinion in the case, but just after it was handed down, he is reported to have told an aide to President Franklin D. Roosevelt: "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything. It's come to an end."
Less prophetic words were never spoken. Four years later, in National Labor Relations Board v. Jones & Laughlin Steel Corp., the court--with Brandeis in a 5-4 majority--upheld the National Labor Relations Act based on an expansive reading of Congress's power under the Interstate Commerce Clause.
Since then, the high court has interpreted the Commerce Clause as an almost unlimited grant of regulatory power to the federal government. The 2012 ObamaCare case, National Federation of Independent Business v. Sebelius, was one of the few exceptions. The court held that Congress could not draft individuals into commerce by mandating that they purchase medical insurance. But Chief Justice John Roberts vitiated the effect of that ruling by accepting the alternative construction of the mandate as a tax on the income of the uninsured.
Ironically, before ObamaCare the medical-insurance industry functioned very much according to Brandeis's "laboratories of democracy" model. "Thanks to the McCarran-Ferguson Act, which was passed in 1945, each of the fifty states has the exclusive power to license health insurance within a state's own borders even if, in doing so, a state directly burdens interstate commerce by shutting out-of-state insurers out of the market," as Steven Calabresi explained in a 2013 article for the University of Cincinnati Law Review.
"The McCarran-Ferguson Act purports to allow state governmental discrimination against inter-state commerce that would otherwise violate the Dormant Commerce Clause," Calabresi argues, referring to the doctrine that states may not regulate interstate commerce. "It is this statute that has created the state health care oligopolies and monopolies and which is the cause of all our health care woes."
But while McCarran-Ferguson deprived consumers of the benefits of competition across state lines, it did allow states considerable leeway to experiment. Some enacted coverage mandates; others didn't. Some imposed "community rating"--a ban on charging higher premiums to policyholders with pre-existing conditions--and some repealed that requirement when it proved uneconomical. Massachusetts established an individual mandate, which most critics concede was (in contrast with the federal version) a constitutionally permissible exercise of state police power.
ObamaCare left the state-based regulatory scheme in place while overlaying upon it a panoply of new federal mandates. One of the few policy choices states have--to opt in or out of the Medicaid expansion--was not even part of the law until the high court found, also in NFIB v. Sebelius, that Congress had exceeded its powers in threatening to cut off existing Medicaid funding to states that did not go along.
So what we have with ObamaCare is the worst of both worlds: state monopolies without the flexibility to innovate. Yes, some states have proved more competent than others in the details of implementation, while some have proved even less competent than the federal government. But you can't call them laboratories of democracy when the mad scientists in Washington have ordered all of them to conduct exactly the same experiment.
Meanwhile, the CBS News website features a story highlighting another cliché: "Once enrollment is over, a look at the marketplaces will give the nation a better picture of how well the Affordable Care Act is functioning," writes reporter Stephanie Condon. "It's already perfectly clear, though--to voters and lawmakers alike--that the law is a work in progress"
The meaning of an assertion like "the law is a work in progress" is close to perfectly opaque, and the story consists of a lot of equivocating. While "the first few months of open enrollment were disastrous," now "the administration says it has largely recovered." Republicans still want to repeal the law, while vulnerable Democrats "are backing bills to reform it."
Public opinion remains hostile, but hostility isn't at an all-time high: "While just 12 percent of Americans said in December that the launch of the new marketplaces has gone well, 26 percent say so now." But only 5% say it's "gone very or extremely well." Who are those people?
"Even the Obama administration has acknowledged the law is a work in progress, making several adjustments to the new rules," Condon notes. She refers to the relaxation of today's deadline, but doesn't mention all the other delays or the availability of subsidies on the federal exchange, currently under court challenge as contradicting the plain language of the statute.
"Work in progress" is another cliché. It sounds like another New Deal program--the Works in Progress Administration--but actually originated as an artistic term. The Free Dictionary defines it as "a yet incomplete artistic, theatrical, or musical work, often made available for public viewing or listening." An example would be a film screened to test audience reaction with an eye toward possible prerelease edits.
Years ago this columnist wrote a review for a small newspaper in which we panned a performance-art piece that had been advertised as a work in progress. That vexed the performer, who phoned us to say we should not have reviewed it because it was not complete.
She conceded our point when we observed that it was open to the public and told her we had paid for our ticket. We learned from the experience that to call something a "work in progress" is to request a suspension of judgment, or at least of public criticism.
Legislation is not art, and although ObamaCare is ugly, that is not its primary flaw. It has already had deleterious real-world effects and is certain to have more. And if we live in a democratic republic, what is a news reporter doing urging her audience to withhold criticism of their elected officials' actions?