Bad Faith, from the French mauvaise foi, is a concept in existentialist thought used to describe people who are deceiving themselves by dutifully accepting larger social illusions of identity. One of the examples that Jean-Paul Sartre uses is a waiter who too self-consciously behaves “waiter-esque,” his movements a studied performance of how he believes a waiter should act. Unlike a child who “plays with his body in order to explore it, to take inventory of it; the waiter in the café plays with his condition in order to realize it.” Simply put, having Bad Faith means believing your own bullshit.
Sen. Orrin Hatch (R-UT) channeled Sartre’s waiter this week during his keynote at a Heritage Foundation event billed as “King v. Burwell: Why the IRS Obamacare Handouts Should Lose at the Supreme Court.” Hatch expertly performed the facile outrage that has come to typify the Republican response to the Affordable Care Act. His main argument was that insurance subsidies built in to the ACA are being illegally distributed. State-run exchanges get the subsidies; federal exchanges don’t. He’s right in a narrow sense, but wrong in a larger, more important one.
In order to properly plumb the depths of the Bad Faith shared by Hatch and his cohorts, we have to examine what this SCOTUS case is really about, what’s at stake, and how ridiculously the ACA’s critics have responded to it.
King v. Burwell is one of a handful of cases claiming that the ACA is worded so that it only allows for tax subsidies on state-run exchanges. Currently, the IRS also gives subsidies to federal exchanges, a policy which critics contend is an overreach of authority. Since only fourteen states have set up their own exchanges so far, SCOTUS could potentially interpret the case in such a way that would end tax subsidies for exchanges in thirty-six states. According to the Department of Health and Human Services, 87 percent of people enrolled in ACA through the website rely on these subsidies. If the challenge succeeds, the Affordable Care Act would be gutted, leaving nearly 8 million people without insurance.
The GOP has two concurrent objections to the ACA. First, there’s the petty legal wrangling, an exegesis of Congressional intent; second, there’s the conservative obsession with undermining any good that a government can accomplish for its citizens, even if it literally kills them. There’s a reason why the House has voted to repeal the ACA sixty(!) times in the past four years without offering up a viable replacement—and the gravity of the health care crisis in America has nothing to do with it.
But politicians can’t very well come out and say, “Vote for me, citizen, though your life means less than sustaining my free-market orthodoxy.” They must offer some notional gesture towards caring for their constituents. And it helps if they convince themselves that they care, too. Maybe that’s why even a few Republicans are expressing bewilderment at the suggestion that the ACA would be repealed without having something set up to replace it.
“Had Congress voted for the full repeal of Obamacare two years ago, families and small businesses would have been able to adjust to the change,” said Rep. Bruce Poliquin (R-ME). “Now, however, more than 60,000 Mainers have invested their time and energy in choosing health care plans that work for their families.”
Republicans know that a complete repeal of the ACA now would cause chaos. But they also know that their victory rests on Chief Justice Roberts, and his swing vote depends on their showing that they have an alternative plan. “We feel obligated to have a contingency plan if King v. Burwell goes to King,” Paul Ryan said recently. SCOTUS is set to decide the case next month, so the clock is ticking.
This is a delicate balancing act. ACA critics have to create a Potemkin healthcare alternative that will assure Chief Justice Roberts that the transition can be smooth, while also reverting to the market-driven nihilism that made the law necessary in the first place. The easiest way to tackle this problem is to announce vague plans without giving any details (see Marco Rubio). Or they could pull a Sen. Richard Burr (R-NC), who said, “As far as I’m concerned, if King v. Burwell is struck down, the White House is the one responsible to say what they’re going to do next.” Clever move—wrecking someone’s legislation and then demanding they fix their broken legislation.
Critics who have spent the past few years not coming up with an alternative to Obama’s plan seem almost confused at their inability to formulate one now. It’s as if they are unable to decode their own language, and blind to the role they’re playing. Through all of this bluster and bloviation shine the tell tale signs of Bad Faith. Always worse than simply telling the lie, to display Bad Faith is to embody the lie.