Morning Fog

ACA - Legal Decision With Political Intrigue/Impact

The social-legislative fallout of Thursday's Supreme Court decision on the Affordable Care Act is fairly clear, even though many details remain to be worked out, and many obstacles to its full implementation exist.  The political import is less clear, yet I'd argue it may be the more important element in terms of its long term effects.

Chief Justice Roberts's move to vote with the Court's "liberals" was a big surprise to all and, by some accounts, came rather late in the deliberative process.   (Now, at least, we know why Scalia was so surly earlier in the week - we know, but we should not excuse his lack of professionalism.)  We may never know what prompted Roberts to do so.  On the surface, it can be said that he wanted to apply law and keep the decision divorced from the question of whether the Act is wise or effective legislation, which would be Congress's decision.  That's admirable, and what we would expect from all Justices.  Would that the others had also felt the same compulsion. 

One commentator I read suggested Roberts had now "cemented" the Court's reputation for above-the-fray impartiality. Not so.  The Court has a long way to go on that.  I would say this vote began the process of rebuilding that reputation out of the very tattered remains of what it used to be.  Still, the issue of reputation is important and probably the real clue to the Chief Justice's surprising vote.   It may be more correct to suggest that Roberts wanted to back away from the impression that the Court has been meddling in political matters, without necessarily ceasing the actual meddling. 

Roberts's purportedly unbiased decision nevertheless has some very real political consequences:

• Labeling the "individual mandate" a "tax" (and therefore constitutional) clearly offers the Republicans who oppose ACA an ax-handle that will unquestionably help them in their legislative fight to defeat sensible health care.  People are irrationally against "taxes" so it's a label that politicians avoid, for good reason.
• Roberts succeeds in hitting the reset button on several more decades of law when he opines that the ACA mandate can't be justified constitutionally under the interstate commerce clause.  This leaves the door open to future challenges to, and restrictions on, the use of the that clause, or to existing social legislation that depends on it.
• Roberts took on the writing of the opinion so that he could craft these subtle but important shifts in constitutional law.

The Chief Justice may be completely sincere about restoring the Court's apolitical reputation; he may be totally earnest about not letting the Court impinge too far on the lawmaking prerogatives of Congress ... but we'll need to see a lot more evidence of that.  Meantime, call me untrusting, but I have an odd feeling that having observed the Court pick a President in 2000, Roberts (who wasn't on the Court at the time) might have though it sounded like fun and wanted to try it himself. 

The only favor he may have done the President by saving ACA is to have made him the first President to have passed a solid, comprehensive health care law.  Whether or not the GOP succeeds in killing it; whether or not Obama is reelected; that's a major and historic achievement he can be proud of. 

Of Healthcare We Sing

By now we all know that the Supreme Court, in a 5-4 decision announced June 28, certified the Affordable Care Act almost in its entirety as Constitutionally Kosher. 

There's no denying this is a historic step.  But more historic, I believe, was the actual passage of the Act in the first place, a milestone of at least six decades of effort -- some commentaries I've read suggest that the effort to pass such an act began with Nixon, but in fact it started with FDR, and both Eisenhower and Kennedy expressed the need for such legislation as well.  Each time it's been considered or attempted, conservative forces have succeeded in stifling it, beating it back, or delaying it to death, just as the same forces delayed simple racial justice for so many decades.

The Court's decision yesterday should receive its due as another major step on the road to putting a reasonable medical-care safety net in place for all citizens (and even non-citizens) of the U.S. -- the kind of net that every other developed country in the world takes for granted.

Yet it's only a step.  There is no question that conservative forces will continue to fight the implementation of the act.  The Constitutional challenge was only the first line of defense, and there are many ways opponents of the new law can be successful:  Candidate Romney has vowed to repeal it if he is elected; conservatives have vowed to challenge it in court; businesses will work to have their minions in Congress pass legislation that will nibble away at key provisions; and even if Romney is not elected, Republicans in congress can delay, obfuscate, amend, minimally fund, or defund key parts of the law.  With the ACA in embryo stage now, this is one abortion that regressives will gladly fund.

Realizing affordable care can only be reasonably certain at this point if the voting public uses the ballot in November to return a Democratic majority in both houses of Congress.  (it would of course help also to reelect Obama, though that may not be essential.)  That is an unlikely result, given the continuing relatively even Republican/Democratic split in the electorate.

Such, I think, are the health care ramifications of yesterday's Court action.  There are also important political ramifications, to be dealt with in a future post. 

 

The Supreme Court's Mad Dog

Yesterday I briefly mentioned Justice Scalia's out-of-place and highly political fulminations when the Court handed down its decision on Arizona's immigration law. Scalia's clear prejudice stood apart from any of the other justices'.  Not for the first time.  As I recall, it was Scalia who publicly announced, before the Court had heard any evidence or pleadings in Bush v. Gore, that the plaintiffs would "have to show ... more than I've seen so far."

The recent outburst is so far beyond "normal" behavior for a Justice that it's easy to suspect the man must be suffering from some medical problem.  Unfortunately, the life tenure of justices makes no provision for that unless they themselves choose to recognize their failing capacity.

It's heartening to see that others also noticed.  I can agree easily with Dana Milbank, and second E.J. Dionne's suggestion that Scalia resign.  Not that such appeals are likely to lead anywhere!

Supreme Court On Immigration

The Supreme Court announced several decisions on Monday June 25, ranging from the completely predictable (no, they're not changing their minds about letting corporations buy elections) to the somewhat surprising (the decision on Arizona's immigration law, which appears to have a little something for everyone).

On the latter, the Court seemed to OK letting police ask anyone stopped or arrested for documents, while striking down the state's desire to take enforcement into its own hands.  While media and the President lamented the first part, with the President quoted as saying that "no American" should have to deal with the uncertainty of being stopped, I don't see it as a terrible blow to the legal system.  Police are permitted to ask anyone they stop for an ID, so why not immigrants, both legal and illegal? 

The difficulty and concern, of course, reflected in the President's remark, is that police could exceed their authority (and there are clear cases in Arizona of their doing so), end up profiling and harassing those who look to be of non-American even if they are U.S. citizens.  That needs to be avoided, but there are ways of doing so.

On the other hand, the Court predictably came down in favor of the very clear Constitutional stipulation that matters of immigration and citizenship are the province of the federal government.  Overall, I'd call this a victory for the Administration's position.

So, did the Court finally get one right?  I'd say yes, except for Scalia's weird and out-of-place screed.  But the Court isn't immune to playing politics.  The "big prize" remains health care, and I think it's entirely possible the conservative Gang of Five on the Roberts court could simply be using its seeming "reasonableness" on this issue to help balance predictable outrage if it plans to go full-bore after the health care act.  Its announcement of a decision in that case will tell the full tale.

 

Egypt -- Have Morsi

It is to be hoped fervently, as an op-news piece in today's Washington Post would have it, that recent election results in Egypt might teach Americans, especially members of Congress, "that there is only so much a U.S. president can do to run the world."  It would be a useful lesson but I seriously doubt anyone will take it on board.

Generally, in my experience, it's Congress's view that the U.S. should actively engage in trying to engineer elections in foreign countries to mold the results to our liking.  If that were really possible, it would still be doubtful policy to actually seek to do it.  We couldn't be involved without our involvement becoming known, and that would not only create resentment, but would make us a handy scapegoat when things went wrong.  To understand the point, we have only to ask ourselves what we'd think if we were to read in a French or Russian newspaper headlines suggesting that those governments had failed (or succeeded!) in influencing the results of our election process.

In fact, however, much to the consternation of CongressPersons, it really is not generally possible to do much to "fix" foreign elections.  Usually, there is nothing to be done.  We await outcomes of the democratic process, and we deal with them.  To do otherwise is to try to hold back change that's likely to come sooner or later.  Is it possible that Mr. Morsi's election may lead to a full-fledged, barn-burning, Muslim Brotherhood Islamic fundamentalist government in Egypt?  Sure.  But not likely, I think, in the Egyptian context.  Time will tell, but we should be glad not to have been trying to lay hands on the electoral machinery.

That won't stop regressive politicians from suggesting that we should have pulled levers; nor will it prevent Egyptians - if the new government fails to deliver - from blaming us for their disappointment.  But we should at least be realistic about our options, and level-headed in allowing others the freedom of their choice.

The Forest Unseen

The Forest Unseen, by David George Haskell, is one of the most fascinating books I've read in a long while.  It's a must read for anyone with the least interest in our environment, nature, the life of the forest. 

Haskell's book is a collection of essays written over the course of a year as he observes life in a small section of Tennessee forest.  Topics range across the full spectrum of biology, botany, ecology, and even occasionally theology (in the case of the ichneumon wasp).  For most of us, each little essay will reveal a gem of discovery, something we didn't know or hadn't thought about -- for example, how turkey vultures find the carrion on which they depend (plus what else they find and how it relates to your local utility provider), or the differences between a chickadee's vision and our own.

But it's not just a dry scientific tract.  Haskell writes with elegance and wit.  And while he espouses a do-no-harm approach where nature is concerned, his measured viewpoint on exceptions (as for example when he finds golf balls on the forest floor) may surprise you.

Two notes for special audiences:

For Kindle owners - there are no photos, only essays, so order your Kindle version secure in the knowledge that your perusal of it won't be marred by gray, murky reproduction of illustrations.

For religious fundamentalists - a warning about content:  this book contains adult science material, and filthy language such as "evolution" and "natural selection" occurs frequently.   

Mission Creepy

"Amok," as I recall, comes from the Malay language and refers to the crazed disregard of danger exhibited by tribesmen in battle against British troops.  The condition was attributed to the use of drugs.  Maybe the word will experience a new freshet of usage, since it seems to describe certain types of wild behavior we've seen lately, for example, the guy who was shot in Florida while literally chewing another man's
face off.

It's not just people who can run amok, though.  Organizations can do it too. Today the U.S. Anti-Doping Agency is bringing new charges against cyclist Lance Armstrong.  I'm no particular fan[atic] of bicycle racing, but I do know that Armstrong has on numerous occasions been accused of using performance-enhancing drugs, yet tests have consistently shown no signs of it.  The USADA is a new accuser [of Armstrong], yet it just seems that they're out to persecute him.  It bothers me that despite the history, they can preemptively ban him from current competition; it bothers me too, that the agency chooses to pursue this beyond the expiration of the statutory limitation, with the argument that more recent evidence still can be adduced to prove old charges.  Whether or not the new investigation succeeds in incriminating Armstrong, when is enough enough? 

Surely the efforts of NYC Mayor Bloomberg to ban extra-large soft drinks is another case.  Whether or not a two-quart soda is good for you (and notwithstanding the smarmy protestations of the companies who make them, I think it's pretty certain it's NOT), most of us, surely, would say the mayor's fanaticism is outrunning his common sense.  If people are dumb enough to buy such drinks, let them. Anyway, I'm sure the cup is jammed with ice, so that the actual soda in it amounts to no more than 4 ounces.

Bloomberg's hubris represents a private/government blend.  As an entrepreneur-turned-pol, shouldn't he have a better sense of some limits on government regulation?  (Trick question: Generally private-sector tycoons seem to feel quite free to impose their personal foibles on their employees and even customers; it's just that we tend not to stigmatize them for that.)

The purely private sector isn't immune, either.  I suggested once before that ICANN's plans to widely expand the available "top-level domains" for internet addresses (e.g., ".com," ",edu,".org" and similar) smacked of needless profiteering.  What are we to make, then, of the latest announcement regarding plans to create, and sell, entire such superdomains (e.g., ".book," ".grocery," or ".inc")?   It seems self-evident that the need
for such broad domains disappears if a single company can "own" them.  If Amazon acquires the ".book" TLD, doesn't it become a huge empty field with only Amazon parked in it?  Or only those authors of which Amazon approves?  I can't see anything but overreach here.   If justice is truly sometimes poetic, perhaps we'll find that before these superdomains have produced much profit for ICANN (or Amazon), technology will have moved on to a completely different way of identifying web addresses.

How The Private Sector Is Doing

Obama's recent statement that "the private sector is doing fine" has become the news item of the week, with everybody commenting and arguing about it.

It all proves that we can shout at each other indefinitely over ways to fix the economy, but we won't be very successful in finding our way out unless we can avoid partisan argument that seeks to obscure, rather than reveal, the truth.  There's so much babble on this topic it's hard to encapsulate it, so as an example I've chosen the nearest at hand:  an item from today's press by Marc Thiessen, headlined "Obama's backward gaffe."

From his misleading initial quote (it's what Harry Reid said months ago, but not what Obama said), through the spurious claim that taxes only fund government jobs (taxes also fund huge capital spending in construction, military procurement on a scale that creates private sector jobs), to his exaggerated and mistargeted finger-pointing about burdens on the private sector (they are all effects of the crushing Bush recession, so deep we haven't been able to recover), Thiessen's article is shot with tongue-in-cheek selective fact-picking. 

That's not unusual in the claims of politicians or their paid minions, like the folks at the American Enterprise Institute, who know on which side their bread is buttered.  But it's not reasoned dialogue, which we appear to have lost.

I'd say the real truth is twofold:

• No one really knows how to "create jobs."  The economy will heal itself eventually.  It's slower than we would like, but it is well on its way to doing so now -- unless we choose to switch again from stimulus to restraint.   And because we don't know what works, we still need a combination of private sector and government effort.
• Regarding Obama's remark, it was correct in its context, but taking remarks out of context is mother's milk for campaign strategists, so it was dumb, and yes, probably damaging, for Obama to have said it.     

Trivial Pursuits

A couple of days ago columnist Kathleen Parker took Obama to task for being seen in the company of glitzy movie stars:

"the Democratic Party’s demonization of the rich won’t wash," [she claims] "as long as the president shares the stage with Hollywood and such billionaires are deemed acceptable."

There are two very obvious fallacies in that conclusion.

First, let's concede that any candidate for President has to raise a lot of money somehow.  But with that said, isn't it far more important to know on whom they intend to spend money if they're elected, than from whom they got their campaign funds?  The real issue of "the rich" that Ms. Parker coyly ignores is whether government programs and processes should be skewed for the benefit of the rich. 

Second, does it really matter from what groups/classes of people a candidate gets his campaign funds?  Yes, actually, it seems to me it might.   Let's compare:  The glamorous jet setters give openly, in the very sort of public extravaganzas that Parker castigates.  We can see where that money comes from.  Contrast that to the drab gray suit with the eccentric ideas who hides behind the facade of a Political Action Committee to make his contribution.  He has a good chance of remaining anonymous, or at least unnoticed.  I know which I prefer.  

It's not too much of a reach, either, to suppose that the latter group of donors, on the whole, are hoping to buy policy that will benefit them directly.  It's far less clear what quid pro quo the stars of Hollywood and Broadway would, or could, expect from their largesse.  Should Obama advocate a law requiring everyone to go to the movies once a week? 

It seems a shame when someone who has a national platform as a keyboard-for-hire columnist uses that advantage to spout nonsensical trivialities.  If Parker really can't tell the superficial from the substantive matters, she should seek a new line of work.

Historical Perspective In Politics

• "We are ... mired in governmental deadlock, as Congress blocks or kills not only [Democratic] programs but Republican programs as well."
• "This Congress has gone further than any other within memory to replace debate and decision by delay and stultification ... there is reason to wonder whether the Congressional system as it now operates is not a grave danger to the Republic."
• "It has seemed impossible to bring about any resolution of the deep and embittering divisions in Congress."
• "The scandal has put our whole system of parliamentary democracy in question."

The above are a few observations I read today.  You can find this sort of thing almost daily, somewhere, in the flood of political analysis and commentary in the media.  So what's new?

Nothing new.  In fact, something old.  These comments were all made in 1963.  The first was the historian James MacGregor Burns; the second, the political columnist Walter Lippmann; the third is from another columnist, Marquis Childs; and the last, from Life magazine.  I extend thanks to historian Robert Caro, who collected these comments in the latest volume of his ongoing biography of Lyndon Johnson, The Passage of Power.

The lesson, I suppose, is that despite chicken-little predictions that our political system is failing, we've seen deadlock before, and maybe we (I included) should be patient and let things take their course.  The system will survive.  Let us hope.

It's a useful lesson, yet on another plane, it's more than a bit discouraging to think that we've been wrestling with the problem of deadlock for so long (and no doubt well before 1963.)  Since the Kennedy years, perhaps we have had a couple of decades of a functional Congress; but the obverse is that we've had a couple of decades when nothing got done. 

Can the U.S. thrive, or even survive, in the 21st-century world with an 18th-century political process?  In Ben Franklin's day, we were a relatively insignificant power in the world, and news of developments around the globe came via slow boat, in weeks, if not months.  Just as I don't believe we can remain the greatest country in the world without constant self--examination and admission of our flaws, I don't think we can rationally continue to put blind faith in the mantra that our Constitution is valid for eternity.  Let's keep a keen eye open for flaws, and an open mind about how they might be fixed.