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“Clouded By Misperceptions”: Five Myths About The Health-Care Law

The Supreme Court will hear three days of arguments starting Monday on whether President Obama’s Affordable Care Act is constitutional. Twenty-six states have filed challenges to the health-care reform law. The main issue, on which the lower courts have split, is whether Congress had the power to pass this law under the Constitution’s commerce clause. The answers to that and other questions are clouded by misperceptions about the law itself. Let’s debunk them.

1. The “individual mandate” forces everyone to buy health insurance.

The law states that, beginning in 2014, individuals must ensure that they and their dependents are covered by health insurance. Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 21/2 percent of anyone’s annual taxable income.

A large majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.

The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.

2. Only the individual mandate is at stake in the Supreme Court case.

The mandate is not a stand-alone provision that can be invalidated without affecting the rest of the law. In fact, it is merely an ancillary measure that makes two more-fundamental provisions of the law workable: “guaranteed issue” and “community rating.”

A significant problem with our nation’s health-care system has been that insurance companies can reject applicants who have had health problems, including minor ones. The guaranteed issue provision prevents companies from turning down applicants because of their medical conditions or history. The community rating measure bars insurers from charging higher premiums to those who have had illnesses or accidents.

Experience in the states has shown that if people can’t be turned down for health insurance, there must be an incentive for them to sign up for it before they have an accident or illness. The individual mandate was enacted to ensure that the central, nondiscrimination provisions can work as they were intended — to provide everyone access to affordable health care, regardless of their medical history or current conditions.

If the court were to strike down the mandate, the law’s popular provisions on preexisting conditions would fall as well.

3. If the court upholds the health-care law, it means Congress has the power to require Americans to purchase any product.

The health-care case is a test of Congress’s power under the Constitution to regulate commerce among the states. One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.

The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim would not justify any law that required Americans to buy products such as cars or broccoli.

The mandate does not force people into commerce who would otherwise remain outside it. Instead, it regulates the consumption of health care, an activity in which virtually everyone will engage. Right now, people who go without insurance often shift the costs of their health care to other patients and taxpayers. That situation is different from what happens with any other type of purchase.

Would the government’s defense of the mandate also support a law requiring Americans to buy broccoli or a car? The answer is a simple and emphatic no.

4. The law is socialist.

Actually, the opposite is true. The principal reason the Affordable Care Act has been called unprecedented is that it declines to follow the New Deal approach of having a monolithic government agency be the single provider of a good or service. Instead, the law adopts a new approach, one conservatives have long supported, of using providers in the private market to deal with social and economic problems.

In defending his “Massachusetts mandate” as a conservative model for national health-care legislation, former governor Mitt Romney editorialized in 2009 that by imposing tax penalties on people who choose to remain uninsured, an individual mandate “encourages ‘free riders’ to take responsibilities for themselves rather than pass their medical costs on to others.” And, as Romney noted, conservatives have never been inclined to favor freeloaders.

5. The law is an extraordinary intrusion into liberty.

Liberty is always said to be fatally eroded, it seems, when great advances in social legislation take place. The lawyers who urged the Supreme Court to strike down the Social Security Act of 1935 argued that if Congress could provide a retirement system for everyone 65 and older, it would have the power to set the retirement age at 30 and force the very young to support everyone else.

It was said that if Congress had the authority to create a minimum wage of $5 an hour, it would also be a regulation of commerce to set the minimum at $5,000 an hour. In 1964, critics argued that if Congress could tell restaurant owners not to discriminate on the basis of race, it could tell them what color tablecloths to use. None of these things happened.

Nothing in the health-care law tells doctors what they must say to patients or how those patients are to be treated. It only requires people to either have insurance coverage or pay a modest tax penalty.

Nearly 75 years ago, a Supreme Court dominated by appointees of conservative presidents rejected the challenge to the constitutionality of the Social Security Act. The words of Justice Benjamin Cardozo’s 1937 opinion are relevant today:

“Whether wisdom or unwisdom resides in [the statute in question] it is not for us to say. The answer to such inquiries must come from Congress, not the courts.”


By: Walter Dellinger, The Washington Post, March 23, 2012

March 25, 2012 Posted by | Affordable Care Act, Constitution | , , , , , , , | Leave a comment

“How The GOP Got Catholicized”: The Alliance Of Ultra-Conservative Catholics And Tea Party Evangelicals

There was a time when the Republican Party was strictly for White Anglo Saxon Protestants. It was an alliance between Country Club Episcopalians and twice born followers of the Old Time Gospel, all firmly opposed to mass Catholic immigration from Europe. The nativism of the GOP drove Catholics into the welcoming arms of Al Smith, Jack Kennedy, Tip O’Neill and the Democratic Party.

But this year’s GOP front-runners are a Mormon and two Catholics — Rick Santorum (a cradle of Italian descent) and Newt Gingrich (a convert). Roughly one-quarter of Republican primary voters are Catholic. Notable Catholic GOP leaders include John Boehner, Paul Ryan, Christine O’Donnell, Marco Rubio and Jeb Bush. Six out of nine justices of the Supreme Court are Catholics, and five of them are Republicans.

The GOP is undergoing a quiet process of Catholicization. It’s one of the reasons why this year’s race has focused so much on social issues — and sex.

Republican outreach to Catholics began in the early 1970s, when Richard Nixon tried to entice blue-collar “white ethnics” to the GOP by taking a tough stand on abortion. Nixon told members of his staff he was tempted to convert to Catholicism himself, but was worried it would be seen as cheap politics: “They would say there goes Tricky Dick Nixon trying to win the Catholic vote. …

Nixon genuinely admired the Catholic intellectual tradition and its ability to provide reasonable arguments to defend conservative values at a time when they were undergoing widespread reappraisal. That certainly made the Church an invaluable partner during the culture wars of the 1980s and 1990s.

When the Moral Majority was established in 1979 to oppose things like abortion and homosexual rights, its evangelical founders did their best to include Catholics. Despite the organization’s reputation for being the political voice box of televangelists and peddlers of the apocalypse, by the mid ’80s it drew a third of its funding from Catholic donors. Leaders like Jerry Falwell and Pat Robertson consciously used the Moral Majority (and, later, the Christian Coalition) as an exercise in ecumenical coalition building.

Falwell and Robertson were fans of Pope John Paul II and his resilient anti-communism. But they also recognized, like Nixon, that the Catholic Church had a vast intellectual heritage that could be drawn upon when fighting the liberals. For example, when debating abortion, evangelicals had hitherto tended to rely on Scripture to make their case. Catholics, on the other hand, had been integrating the concept of “human rights” into their theology since the 1890s.

Under Catholic influence, the pro-life movement evolved from a zealous, theology-heavy rationale to one more couched in the language of human dignity and personhood.

By 2000, Catholic social teaching was a core component of the Republican Party’s “compassionate conservatism” agenda. Karl Rove targeted religious Catholics on behalf of George W. Bush, while the president made a big play of his social traditionalism. In the 2004 election, Bush beat John Kerry among Catholics, despite the fact that Kerry described himself as a faithful Catholic who never went anywhere without his rosary beads.

Crucially, Bush’s victory among Catholics was made possible by his margin of support among those who attend Mass regularly. Catholics who said they rarely went to church plumped for Kerry. The election heralded a new split within the politics of the communion, between religious and ethnic Catholics. Indeed, it could be argued that just as Republican Protestants have become a little more Catholic in their outlook, so conservative Catholics have become a little more Protestant in theirs.

Take Rick Santorum. Santorum is part of the John Paul II generation of Catholics who reject most of the liberalism that swept the church in the 1960s. He is a member of a suburban church in Great Falls, Virginia, that (unusually, nowadays) offers a Latin Mass each Sunday with a Georgian chant sung by a professional choir.

The church has a “garden for the unborn” and has boasted as worshipers the director of the FBI, the head of the National Rifle Association and Justice Antonin Scalia. Santorum is also an outspoken admirer of Saint Josemaria Escriva, the founder of the conservative lay organization Opus Dei. Opus Dei encourages among its members a work ethic and an effort to “live like a saint” that is strikingly similar to the values and mores of New England’s Puritan settlers.

Santorum’s political theology has thus moved him so sharply to the right that it’s sometimes difficult to culturally identify him as a Catholic. In a March 18 survey, less than half of GOP Catholics actually knew the candidate was himself a Catholic. That might be one of the reasons why Santorum consistently loses to Romney among Catholics in primaries, even during his landmark victories in the Deep South. In contrast, he does very well among evangelicals.

We might speculate that what is emerging is an alliance between ultra-conservative Catholics and tea party evangelicals. Its politics might be antediluvian, but it’s an ecumenical breakthrough and a cultural revolution at the grass-roots level.

The coalition’s mix of Catholic moral teaching and evangelical fervor has oriented the 2012 GOP race toward fierce social conservatism. During the debate over Obama’s contraception mandate, it was the Catholic conservative leadership who provided the moral objection, but the evangelicals who produced most of the popular opposition to it. And it is evangelical support that has elevated Santorum to his current status in the race. With its ability to shift the agenda and win primaries, the emerging Catholic/evangelical political theology is the most striking conservative innovation of this turbulent campaign season.


By: Timothy Stanley, The Daily Telegraph, Special to CNN, CNN Election Center, March 23, 2012

March 25, 2012 Posted by | Election 2012, Religion | , , , , , , , | 1 Comment

What If “The Bogeyman Disappears”: How High Court Ruling Could Backfire On GOP

At WaPo’s ‘The Fix,’ Aaron Blake has an interesting read, “On health care, Supreme Court loss could be electoral win.” Blake believes the GOP’s glee about the upcoming Supreme Court ruling on the ACA could backfire — in an unexpected way. Blake explains:

…Some Republicans are worried that their big challenge to Obama’s health care law could backfire come election time.Obama, of course, does not want to see his signature initiative overturned by the Supreme Court, which holds oral arguments on the bill next week and should render a decision by late June. And Republicans who have long railed against the bill would certainly be overjoyed to see the bill struck down.

But in an electoral milieu (yes, we just used that word) in which winning is often based more on voting against something rather than voting for it, losing at the Supreme Court may be the best thing that could happen to either side — and particularly Democrats.

“In a perverse way, Obama is helped if it is overturned, because then he can use it to rally his base,” said GOP pollster Glen Bolger. “If it is not overturned, then Republicans have a frying pan to bash over the Democrats’ head…”


That last point may be a bit of a stretch. It’s just as easy to imagine the GOP looking like whiners, grumbling about a pro-Republican court saying the law is sound. Plus it may be overstating the intensity of opposition to the mandate — many who don’t like it may be willing to at least give it a try, especially if the High Court says it’s OK.

In addition, don’t forget that polls indicate many who opposed the bill wanted a stronger role for government. Asked “What, if anything, do you think Congress should do with the health care law? Expand it. Leave it as is. Repeal it.” in a Pew Research poll conducted March 7-11, 53 percent said “expand it” (33 percent) or “leave it as it is” (20 percent), with just 38 percent supporting repeal.

Blake is on more solid ground, however, in arguing:

Republicans already hate the law, and if it gets struck down, there’s nothing to unite against. Obama may pay a price from his political capital for enacting a law that is eventually declared unconstitutional, but all of a sudden, the bogeyman disappears, and the GOP loses one of its top rallying cries.The Democratic base, meanwhile, would be incensed at the Supreme Court, which has generally tilted 5-to-4 in favor of conservatives on contentious issues, and could redouble its efforts to reelect Obama so that he could fill whatever Supreme Court vacancies may arise.


Blake argues less persuasively that Republicans will still put energy into repealing the law, even after the Supreme Court’s ruling. Seems to me that this would be a huge loser for the GOP. The public was tired of the legislative debate a long time ago. I would agree with Blake’s assessment, however, that Dems may “have more to gain than Republicans do” in terms of the election — even with an adverse ruling.


By: J. P. Green, The Democratic Strategist, March 23, 2012

March 25, 2012 Posted by | Affordable Care Act, Health Reform | , , , , , , , | Leave a comment

“A Catastrophically Bad Idea”: The False Debate About Attacking Iran

I wonder if we in the news media aren’t inadvertently leaving the impression that there is a genuine debate among experts about whether an Israeli military strike on Iran makes sense this year.

There really isn’t such a debate. Or rather, it’s the same kind of debate as the one about climate change — credible experts are overwhelmingly on one side.

Here’s what a few of them told me:

“I don’t know any security expert who is recommending a military strike on Iran at this point,” noted Anne-Marie Slaughter, a Princeton University professor who was a senior State Department official earlier in the Obama administration.

“Unless you’re so far over on the neocon side that you’re blind to geopolitical realities, there’s an overwhelming consensus that this is a bad idea,” said W. Patrick Lang, a former head of Middle East affairs for the Defense Intelligence Agency.

“Most security experts agree that it’s premature to go to a military option,” said Michèle Flournoy, who has just stepped down as the No. 3 official in the Defense Department. “We are in the middle of increasing sanctions on Iran. Iran is already under the most onerous sanctions it has ever experienced, and now we’re turning the screws further with sanctions that will touch their central bank, sanctions that will touch their oil products and so forth.

“So it has been bad for them and it’s about to get worse,” Flournoy added. “The overwhelming consensus is we should give some time to let that work.”

Granted, American officials are deeply alarmed about Iran’s nuclear program, although the fear is not so much that Iran would use nuclear weapons against Israel or anyone else. Iran apparently developed chemical weapons to respond to Iraq’s chemical attacks during the Iran-Iraq war, and it showed restraint with them. Rather, the biggest fear is that if Iran tests and deploys nuclear weapons, other countries will follow. These could include Saudi Arabia, Turkey and Egypt, setting off another round of nuclear proliferation.

Officials and security experts make several broad points about why a military strike on Iran anytime soon would be an abominable idea.

First, it would set back Iran’s program by only one to three years — and then it presumably would go ahead more covertly and with more domestic support than ever.

Second, this wouldn’t be a single strike but would require sorties over many days to attack many locations. And the aim would be in part to kill the scientists running the program, so there would be civilian casualties. Day by day, anger in the Muslim world and around the world would grow at Israel — and at America. The coalition pressuring Iran through sanctions might well dissolve.

Third, a regional war in the Middle East could result, sucking in the United States. Iran could sponsor attacks on American targets around the world, and it could use proxies to escalate attacks on American troops in Afghanistan.

Fourth, oil supplies through the Persian Gulf could be interrupted, sending oil and gas prices soaring, and damaging the global economy.

Fifth, sanctions and covert methods like the Stuxnet computer worm have already slowed Iran’s progress, and tougher sanctions and covert sabotage will continue to delay the program in a low-risk way.

Granted, everything I say here may be wrong. Israel’s 1981 attack on the Osirak reactor in Iraq and its 2007 attack on a Syrian nuclear project both went smoothly, without retaliation. The attacks set back those countries’ nuclear programs much more than skeptics had expected.

Yet there’s good reason to think that Iran is different, partly because its program is so dispersed and protected. More broadly, war is inherently unpredictable, and Israel has often been horrendously shortsighted in its interventions. Its invasion of Lebanon in 1982 turned into a quagmire that helped lead to the emergence of Hezbollah, while its de facto support for Hamas in Gaza in its early days harmed everyone (except Iran).

Let’s also remember that as Prime Minister Benjamin Netanyahu bangs the drums of war, that may empower Iranian hawks. “The continual threat of a military strike is as likely to convince them to move ahead as to deter them,” Slaughter notes.

Whether Israel will attack Iranian nuclear sites is one of this year’s crucial questions, and people in the know seem to think the odds are about 50-50. We don’t know that the economy would be harmed or that a war would unfold, but anyone who is confident about what would happen is a fool.

So as we hear talk about military action against Iran, let’s be clear about one thing. Outside Netanyahu’s aides and a fringe of raptors, just about every expert thinks that a military strike at this time would be a catastrophically bad idea. That’s not a debate, but a consensus.

March 25, 2012 Posted by | Election 2012, Foreign Policy | , , , , , , , | Leave a comment

“Encouraging Vigilante Justice”: The Political Battle Over ‘Stand Your Ground’ Laws

The shooting of teen Trayvon Martin in Florida last week has sparked a national debate over “stand your ground” laws.

But in many states, fights over the controversial legislation have been going on for years without garnering much attention from anyone other than prosecutors and gun-rights activists.

While George Zimmerman admits to shooting Martin, he says he acted in self defense and has not yet been arrested. Under a 2005 Florida law, a citizen who uses deadly force is immune from prosecution when “he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.”

Backed by the National Rifle Association, first in Florida and then around the country, state legislators have pushed for expanding the right to use deadly force. Twenty-one states now have laws giving citizens wide latitude to use deadly force without first attempting to retreat.

Here are some states where “Stand Your Ground” was recently passed or is currently up for debate.

* A bill passed by the legislature in Minnesota was just vetoed by Gov. Mark Dayton (D).

* In Pennsylvania, former Gov. Ed Rendell (D) vetoed a “stand your ground” bill; it was signed last year by Gov. Tom Corbett (R).

* Democratic lawmakers staged a walk-out in Iowa recently to avoid a vote on the legislation. The legislation will probably be blocked on procedural grounds this year, but state Rep. Matt Windschitl (R) plans to reintroduce it next year.

“I anticipate that there are some people who are going to try use this unforunate incident as an excuse not to expand Iowans’ right to self -defense,” Windschitl said, but argued that this one case had to be balanced against the lives saved by laws like the one in Florida.

* In New Hampshire last fall, Republicans in the state legislature overrode a veto from Gov. John Lynch (D) in order to pass a “Stand Your Ground” bill.

“I think if we end up with more moderate Republicans and certainly more Democrats” after the 2012 elections, “it could be on the table again,” said state Rep. Christopher Serlin (D).

* In Alaska, legislation has passed the House and is currently being considered by the state Senate.

Not every “Stand Your Ground” law came from a purely Republican-controlled state government, however.

Oklahoma’s Democratic governor signed one in 2006, as part of the first wave of “Stand Your Ground” success. So did Homeland Security Chief Janet Napolitano, when she was the Democratic governor of Arizona. In Alabama, a bill identical to Florida’s was first introduced by a Democrat.

Overall, however, there is a partisan divide — particularly in the past two years as advocates have attempted to bring the legislation to less-conservative states — with Republicans supporting the bills and Democrats opposing them. 

In states where the policy has yet to become law, supporters will likely find new resistance. In states where it has recently become law, its supporters could face a backlash.

Supporters of “Stand Your Ground” argue that it doesn’t apply in this case and does not protect killers who did not act in true self-defense. (Republican presidential candidates Newt Gingrich and Rick Santorum have also suggested the law does not apply.) Opponents say that the law encourages vigilante justice by creating ambiguity.

“We’ve never thought by itself that the law is the main issue,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence. “What we think is the main issue is the mentality that that law provides.”


By: Rachel Weiner, The Washington Post, March 23,2012

March 25, 2012 Posted by | National Rifle Association, State Legislatures | , , , , , , , | 1 Comment

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