The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution
The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.
Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.
Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).
So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.
The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.
As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.
Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.
By: Ian Millhiser, U. S. News and World Report, August 12, 2011
How States Are Rigging The 2012 Election
An attack on the right to vote is underway across the country through laws designed to make it more difficult to cast a ballot. If this were happening in an emerging democracy, we’d condemn it as election-rigging. But it’s happening here, so there’s barely a whimper.
The laws are being passed in the name of preventing “voter fraud.” But study after study has shown that fraud by voters is not a major problem — and is less of a problem than how hard many states make it for people to vote in the first place. Some of the new laws, notably those limiting the number of days for early voting, have little plausible connection to battling fraud.
These statutes are not neutral. Their greatest impact will be to reduce turnout among African Americans, Latinos and the young. It is no accident that these groups were key to Barack Obama’s victory in 2008 — or that the laws in question are being enacted in states where Republicans control state governments.
Again, think of what this would look like to a dispassionate observer. A party wins an election, as the GOP did in 2010. Then it changes the election laws in ways that benefit itself. In a democracy, the electorate is supposed to pick the politicians. With these laws, politicians are shaping their electorates.
Paradoxically, the rank partisanship of these measures is discouraging the media from reporting plainly on what’s going on. Voter suppression so clearly benefits the Republicans that the media typically report this through a partisan lens, knowing that accounts making clear whom these laws disenfranchise would be labeled as biased by the right. But the media should not fear telling the truth or standing up for the rights of the poor or the young.
The laws in question include requiring voter identification cards at the polls, limiting the time of early voting, ending same-day registration and making it difficult for groups to register new voters.
Sometimes the partisan motivation is so clear that if Stephen Colbert reported on what’s transpiring, his audience would assume he was making it up. In Texas, for example, the law allows concealed handgun licenses as identification but not student IDs. And guess what? Nationwide exit polls show that John McCain carried households in which someone owned a gun by 25 percentage points but lost voters in households without a gun by 32 points.
Besides Texas, states that enacted voter ID laws this year include Kansas, Wisconsin, South Carolina and Tennessee. Indiana and Georgia already had such requirements. The Maine Legislature voted to end same-day voter registration. Florida seems determined to go back to the chaos of the 2000 election. It shortened the early voting period, effectively ended the ability of registered voters to correct their address at the polls and imposed onerousrestrictions on organized voter-registration drives.
In 2008, the U.S. Supreme Court, by 6 to 3, upheld Indiana’s voter ID statute. So seeking judicial relief may be difficult. Nonetheless, the Justice Department should vigorously challenge these laws, particularly in states covered by the Voting Rights Act. And the court should be asked to review the issue again in light of new evidence that these laws have a real impact in restricting the rights of particular voter groups.
“This requirement is just a poll tax by another name,” state Sen. Wendy Davis declared when Texas was debating its ID law early this year. In the bad old days, poll taxes, now outlawed by the 24th Amendment, were used to keep African Americans from voting. Even if the Supreme Court didn’t see things her way, Davis is right. This is the civil rights issue of our moment.
In part because of a surge of voters who had not cast ballots before, the United States elected its first African American president in 2008. Are we now going to witness a subtle return of Jim Crow voting laws?
Whether or not these laws can be rolled back, their existence should unleash a great civic campaign akin to the voter-registration drives of the civil rights years. The poor, the young and people of color should get their IDs, flock to the polls and insist on their right to vote in 2012.
If voter suppression is to occur, let it happen for all to see. The whole world, which watched us with admiration and respect in 2008, will be watching again.
By: E. J. Dionne, Opinion Writer, The Washington Post, June 19, 2011
Drug Marketing and Free Speech: U. S. Supreme Court Says Data Mining Trumps Your Medical Privacy
Pharmaceutical companies, which spend billions of dollars a year promoting their products to doctors, have found that it is very useful to know what drugs a doctor has prescribed in the past. Many use data collected from prescriptionsprocessed by pharmacies — a doctor’s name, the drugs and the dosage — to refine their marketing practices and increase sales.
The Supreme Court on Thursday made it harder for states to protect medical privacy with laws that regulate such practices. In 2007, Vermont passed a law that forbade the sale of such records by pharmacies and their use for marketing purposes. The ruling upheld a lower court decision that struck down the law as unconstitutional.
Justice Anthony Kennedy, writing for the 6-to-3 majority, said the law violates First Amendment rights by imposing a “burden on protected expression” on specific speakers (drug marketers) and specific speech (information about the doctors and what they prescribed). It is unconstitutional because it restricts the transfer of that information and what the marketers have to say.
In dissent, Justice Stephen Breyer explains that the law’s only restriction is on access to data “that could help pharmaceutical companies create better sales messages.” He notes that any speech-related effects are “indirect, incidental, and entirely commercial.” By applying strict First Amendment scrutiny to this ordinary economic regulation, he warns, the court threatens to substitute “judicial for democratic decision-making.”
The law would have been upheld, Justice Breyer says, if the court had treated it as a restriction on commercial speech, which is less robustly protected than political speech. The court’s majority unwisely narrows the gap between commercial and political speech, and makes it harder to protect consumers.
By: Editorial, The New York Times, June 23, 2011
The GOP’s CIA Playbook: Destabilize Country To Sweep Back Into Power
Modern Republicans have a simple approach to politics when they are not in the White House: Make America as ungovernable as possible by using almost any means available, from challenging the legitimacy of opponents to spreading lies and disinformation to sabotaging the economy.
Over the past four decades or so, the Republicans have simply not played by the old give-and-take rules of politics. Indeed, if one were to step back and assess this Republican approach, what you would see is something akin to how the CIA has destabilized target countries, especially those that seek to organize themselves in defiance of capitalist orthodoxy.
To stop this spread of “socialism,” nearly anything goes. Take, for example, Chile in the early 1970s when socialist President Salvador Allende won an election and took steps aimed at improving the conditions of the country’s poor.
Under the direction of President Richard Nixon and Secretary of State Henry Kissinger, the CIA was dispatched to engage in psychological warfare against Allende’s government and to make the Chilean economy “scream.”
U.S. intelligence agencies secretly sponsored Chilean news outlets, like the influential newspaper El Mercurio, and supported “populist” uprisings of truckers and housewives. On the economic front, the CIA coordinated efforts to starve the Chilean government of funds and to drive unemployment higher.
Worsening joblessness could then be spun by the CIA-financed news outlets as proof that Allende’s policies didn’t work and that the only choice for Chile was to scrap its social programs. When Allende compromised with the Right, that had the additional benefit of causing friction between him and some of his supporters who wanted even more radical change.
As Chile became increasingly ungovernable, the stage was set for the violent overthrow of Allende, the installation of a rightist dictatorship, and the imposition of “free-market” economics that directed more wealth and power to Chile’s rich and their American corporate backers.
Though the Allende case in Chile is perhaps the best known example of this intelligence strategy (because it was investigated by a Senate committee in the mid-1970s), the CIA has employed this approach frequently around the world. Sometimes the target government is removed without violence, although other times a bloody coup d’etat has been part of the mix.
Home to Roost
So, it is perhaps fitting that a comparable approach to politics would eventually come home to roost in the United States, even to the point that some of the propaganda funding comes from outside sources (think of Rev. Sun Myung Moon’s Washington Times and Australian media mogul Rupert Murdoch’s News Corp.)
Obviously, given the wealth of the American elites, the relative proportion of the propaganda funding is derived more domestically in the United States than it would be in a place like Chile (or some other unfortunate Third World country that has gotten on Washington’s bad side).
But the concept remains the same: Control as much as possible what the population gets to see and hear; create chaos for your opponent’s government, economically and politically; blame if for the mess; and establish in the minds of the voters that their only way out is to submit, that the pain will stop once your side is back in power.
Today’s Republicans have fully embraced this concept of political warfare, whereas the Democrats generally have tried to play by the old rules, acquiescing when Republicans are in office with the goal of “making government work,” even if the Republicans are setting the agenda.
Unlike the Democrats and the Left, the Republicans and the Right have prepared themselves for this battle, almost as if they are following a CIA training manual. They have invested tens of billions of dollars in a propaganda infrastructure that operates 24/7, year-round, to spot and exploit missteps by political enemies.
This vertically integrated media machine allows useful information to move quickly from a right-wing blog to talk radio to Fox News to the Wall Street Journal to conservative magazines and book publishing. Right-wing propagandists are well-trained and well-funded so they can be deployed to all manner of public outlets to hammer home the talking points.
When a Democrat somehow does manage to get into the White House, Republicans in Congress (and even in the Courts) are ready to do their part in the destabilization campaign. Rather than grant traditional “honeymoon” periods of cooperation with the president’s early policies, the battle lines are drawn immediately.
In late 1992, for instance, Bill Clinton complained that his “honeymoon” didn’t even last through the transition, the two-plus months before a new president takes office. He found himself facing especially harsh hazing from the Washington press corps, as the mainstream media – seeking to shed its “liberal” label and goaded by the right-wing media – tried to demonstrate that it would be tougher on a Democrat than any Republican.
The mainstream press hyped minor “scandals” about Clinton’s Whitewater real estate investment and Travel-gate, a flap about some routine firings at the White House travel office. Meanwhile, the Right’s rapidly growing media was spreading false stories implicating Clinton in the death of White House aide Vince Foster and other “mysterious deaths.”
Republicans in Congress did all they could to feed the press hysteria, holding hearings and demanding that special prosecutors be appointed. When the Clinton administration relented, the choice of prosecutors was handed over to right-wing Republican Appeals Court Judge David Sentelle, who consciously picked political enemies of Clinton to oversee zealous investigations.
Finally Winning
The use of scandal-mongering to destabilize the Clinton administration finally peaked in late 1998 and early 1999 when the Republican-controlled House voted impeachment and Clinton had to endure (but survive) a humiliating trial in the Senate.
The Republican strategy, however, continued into Campaign 2000 with Vice President Al Gore facing attacks on his character and integrity. Gore was falsely painted as a delusional braggart, as both right-wing and mainstream media outlets freely misquoted him and subjected him to ridicule (while simultaneously bowing and scraping before Republican candidate George W. Bush).
When Gore managed to win the national popular vote anyway – and would have carried the key state of Florida if all legally cast ballots were counted – the Republicans and the Right rose up in fury demanding that the Florida count be stopped before Bush’s tiny lead completely disappeared. Starting a minor riot in Miami, the Republicans showed how far they would go to claim the White House again.
Five Republican partisans on the U.S. Supreme Court – wanting to ensure that the new president would keep their side in control of the courts and recognizing that their party was prepared to spread disorder if Gore prevailed – stopped the counting of votes and made Bush the “winner.” [For details, see the book, Neck Deep.]
Despite this partisan ruling, Gore and the Democrats stepped back from the political confrontation. The right-wing press cheered and gloated, while the mainstream news media urged the people to accept Bush as “legitimate” for the good of the country.
For most of Bush’s disastrous presidency, this dynamic remained the same. Though barely able to complete a coherent sentence, Bush was treated with great deference, even when he failed to protect the country from the 9/11 attacks and led the nation into an unprovoked war with Iraq. There were no combative investigations of Bush like those that surrounded Clinton.
Even at the end of Bush’s presidency – when his policies of deregulation, tax cuts for the rich and massive budget deficits combined to create the biggest financial crisis since the Great Depression – the prevailing message from the Establishment was that it was unfair to lay too much blame on Bush.
Shortly after Barack Obama took office in 2009, a Republican/right-wing talking point was to complain when anyone took note of the mess that Bush had left behind: “There you go again, blaming Bush.”
Getting Obama
Immediately, too, the Republicans and the Right set to work demonizing and destroying Obama’s presidency. Instead of allowing the Democrats to enact legislation aimed at addressing the financial and economic crisis, the Senate Republicans launched filibuster after filibuster.
When Obama and the Democrats did push through emergency legislation, such as the $787 billion stimulus package, they had to water it down to reach the 60-vote super-majority. The Republicans and the Right then quickly laid the blame for high unemployment on the “failed” stimulus.
There also were waves of propaganda pounding Obama’s legitimacy. The Right’s news media pressed bogus accusations that Obama had been born in Kenya and thus was not constitutionally eligible to be president. He was denounced as a socialist, a Muslim, a fascist, an enemy of Israel, and pretty much any other charge that might hit some American hot button.
When Obama welcomed American students back to school in 2009, the Right organized against his simple message – urging young people to work hard – as if it were some form of totalitarian mind control. His attempt to address the growing crisis in American health care was denounced as taking away freedoms and imposing “death panels.”
Soon, billionaires like oil man David Koch and media mogul Murdoch were promoting a “grassroots” rebellion against Obama called the Tea Party. Activists were showing up at presidential speeches with guns and brandishing weapons at rallies near Washington.
The high-decibel disruptions and the “screaming” economy created the impression of political chaos. Largely ignoring the role of the Republicans, the press faulted Obama for failing to live up to his campaign promise to bring greater bipartisanship to Washington.
Hearing the discord framed that way, many average Americans also blamed Obama; many of the President’s supporters grew demoralized; and, as happened with Allende in Chile, some on the Left turned against Obama for not doing more, faster.
By November 2010, the stage was set for a big Republican comeback. The party swept to victory in the House and fell just short in the Senate. But Congress was not the Republicans’ true goal. What they really want is the White House with all its executive powers.
However, following Obama’s success in killing Osama bin Laden on May 2 and with what is widely regarded as a weak Republican presidential field, the Right’s best hope for regaining complete control of the U.S. government in 2012 is to sink the U.S. economy.
Already, the Republican success in limiting the scope of the stimulus package and then labeling it a failure – combined with deep cuts in local, state and federal government spending – have helped push the economy back to the brink where a double-dip recession is now a serious concern.
Despite these worries – and a warning from Moody’s about a possible downgrade on U.S. debt if Congress delays action on raising the debt limit – the Republicans are vowing more brinksmanship over the debt-limit vote. Before acting, they are demanding major reductions in government spending (while refusing to raise taxes on the rich).
A Conundrum
So, Obama and the Democrats face another conundrum. If they slash spending too much, they will further stall the recovery. However, if they refuse to submit to this latest round of Republican blackmail, they risk a debt crisis that could have devastating consequences for the U.S. economy for years – even decades – to come.
Either way, the right-wing media and much of the mainstream press will put the blame on Obama and the Democrats. They will be held accountable for failing to govern.
The Republican propaganda machine will tell the American people that they must throw Obama and the Democrats out of office for stability to return. There will be assurances about how the “magic of the market” will bring back the bright days of prosperity.
Of course, the reality of a new Republican administration, especially with a GOP Congress, would be the return of the old right-wing nostrums: more tax cuts for the rich, less regulation of corporations, more military spending, and more privatization of social programs.
Any budget balancing will come at the expense of labor rights for union employees and shifting the costs for health care onto the backs of the elderly. Yet, all this will be surrounded by intense propaganda explaining the public pain as a hangover from misguided government “social engineering.”
There is, of course, the possibility that the American people will see through today’s Republican CIA-style strategy of “making the economy scream.” Americans might come to recognize the role of the pseudo-populist propagandists on Fox News and talk radio.
Or Republicans might have second thoughts about playing chicken on the debt limit and running the risk of a global depression. Such a gamble could redound against them. And, it’s hard to believe that even their most ardent billionaire-backers would find destruction of their stock portfolios that appealing.
But there can be a momentum to madness. We have seen throughout history that events can get out of hand, that thoroughly propagandized true believers can truly believe. Sometimes, they don’t understand they are simply being manipulated for a lesser goal. Once the chaos starts, it is hard to restore order.
That has been another bloody lesson from the CIA’s operations in countries around the world. These covert actions can have excessive or unintended consequences.
Ousting Allende turned Chile into a fascist dictatorship that sent assassins far and wide, including Washington, D.C. Ousting Mossadegh in Iran led to the tyranny of the Shah and ultimately to an extreme Islamist backlash. Ousting Arbenz in Guatemala led to the butchery of some 200,000 people and the rise of a narco-state. Such examples can go on and on.
However, these CIA-type techniques can be very seductive, both to U.S. presidents looking for a quick fix to some international problem and to a political party trying to gain a decisive edge for winning. These methods can be especially dangerous when the other side doesn’t organize effectively to counter them.
The hard reality in the United States today is that the Republicans and the Right are now fully organized, armed with a potent propaganda machine and possessing an extraordinary political will. They are well-positioned to roll the U.S. economy off the cliff and blame the catastrophe on Obama.
Indeed, that may be their best hope for winning Election 2012.
By: Robert Parry, Consortium News, AlterNet, June 9, 2011
Beyond Citizens United: A Further Overreach On Political Money
The spree of big-money political campaigning — and the corruption that comes with it — seemed guaranteed to worsen Thursday when a federal judge in Virginia ruled that corporations are now free to make direct donations to federal candidates.
District Court Judge James Cacheris claimed his decision was consistent with the Supreme Court’s ruling in the Citizens United case. But his interpretation of corporate free speech rights goes much further — and strains all credibility. The Supreme Court specifically said that the Citizens United ruling was about allowing corporate expenditures through independent campaign groups.
A separate Supreme Court decision from 2003, Federal Election Commission v. Beaumont, still stands and leaves no doubt that the ban on corporate donations to candidates remains the law. Judge Cacheris would seem to twice overrule Supreme Court decisions — a hierarchical impossibility as any law student should know. (A federal judge in Minnesota previously ruled that the ban on corporate donations to candidates still stands.)
Of course, in politics there is the law of the land and there is the tireless frenzy for money. Whether Judge Cacheris — who issued his opinion, as he said, “for better or worse” — meant to blur the two remains to be seen. His decision deserves to be struck down on appeal for “equating apples and oranges,” as Mark Lytle, the prosecutor in the case, said of the judge’s overreach.
Judge Cacheris’s ruling struck down part of an indictment accusing two businessmen of illegally reimbursing employees for their donations to Hillary Clinton’s campaigns for president and the Senate. They are charged with paying more than $180,000 to 43 fake donors in an effort to evade donation limits. Most of the indictment still stands, with a trial scheduled in July.
Campaign money bundlers will keep pushing the limits wherever and however they can — and the integrity of our electoral system will pay the price. The courts need to do a far better job of pushing back.
By: Editorial, The New York Times Opinion Pages, May 28, 2011
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