Protest Needed To Enforce Full Employment Laws
Marjorie Cohn, immediate past president of the National Lawyers Guild, has a post up at Op-Ed News, “Lost in the Debt Ceiling Debate: The Legal Duty to Create Jobs” addressing the federal government’s failure to comply with existing job-creation legislation.
Cohn focuses primarily on The Employment Act of 1946 and the Humphrey-Hawkins Act of 1978, noting also mandates for job-creation in 1977 reforms requiring the Federal Reserve to leverage monetary policy to promote maximum employment. She ads that the Universal Declaration of Human Rights sets a global standard of employment as an important right, which, not incidentally, some major industrialized nations have actually tried to honor.
Cohn’s review of the two jobs acts provides a timely reminder of the moral imperative that faces every great democracy, the responsibility to take action to help insure that every family has at least one breadwinner who earns a living wage:
The first full employment law in the United States was passed in 1946. It required the country to make its goal one of full employment…With the Keynesian consensus that government spending was necessary to stimulate the economy and the depression still fresh in the nation’s mind, this legislation contained a firm statement that full employment was the policy of the country.As originally written, the bill required the federal government do everything in its authority to achieve full employment, which was established as a right guaranteed to the American people. Pushback by conservative business interests, however, watered down the bill. While it created the Council of Economic Advisers to the President and the Joint Economic Committee as a Congressional standing committee to advise the government on economic policy, the guarantee of full employment was removed from the bill.
In the aftermath of the rise in unemployment which followed the “oil crisis” of 1975, Congress addressed the weaknesses of the 1946 act through the passage of the Humphrey-Hawkins Full Employment Act of 1978. The purpose of this bill as described in its title is:
“An Act to translate into practical reality the right of all Americans who are able, willing, and seeking to work to full opportunity for useful paid employment at fair rates of compensation; to assert the responsibility of the Federal Government to use all practicable programs and policies to promote full employment, production, and real income, balanced growth, adequate productivity growth, proper attention to national priorities.”
The Act sets goals for the President. By 1983, unemployment rates should be not more than 3% for persons age 20 or over and not more than 4% for persons age 16 or over, and inflation rates should not be over 4%. By 1988, inflation rates should be 0%. The Act allows Congress to revise these goals over time.
If private enterprise appears not to be meeting these goals, the Act expressly calls for the government to create a “reservoir of public employment.” These jobs are required to be in the lower ranges of skill and pay to minimize competition with the private sector.
The Act directly prohibits discrimination on account of gender, religion, race, age or national origin in any program created under the Act. Humphey-Hawkins has not been repealed. Both the language and the spirit of this law require the government to bring unemployment down to 3% from over 9%…
This legislation only requires the federal government to take action. The private sector, which employs 85+ percent of the labor force, would be indirectly influenced by monetary policy, but would not be required to do any hiring. Still, full enforcement of existing legislation could substantially reduce unemployment by putting millions of jobless Americans to work in public service projects rebuilding our tattered infrastructure.
The ’46 and ’78 full employment laws have been winked at and shrugged off by elected officials for decades as merely symbolic statutes, despite the fact that they actually do require the President, Congress and the Fed to do specific things to create jobs.
Cohn points out that Rep. John Conyers (D-MI) has introduced “The Humphrey-Hawkins 21st Century Full Employment and Training Act” (HR 870), to fund job-training and job-creation programs, funded by taxes on financial transactions. But the bill has no chance as long as Republicans control the House.
Cohn urges President Obama to demand that the Fed “…use all the tools relating to controlling the money supply…to create the funds called for by HR 870, and to start putting people back to work through direct funding of a reservoir of public jobs as Humphrey-Hawkins mandates.” Imagine the political donnybrook that would ensue following such action, legal though it apparently would be. It’s an interesting scenario that needs some fleshing out.
The best hope for full employment remains electing strong Democratic majorities to both houses of congress, while retaining the presidency. Under this scenario, full enforcement of the ’46 and ’78 employment acts is certainly doable. But it’s a very tough challenge, given the Republican edge in Senate races next year.
There are signs that the public is tiring of the tea party obstruction of government, and therefore hope that at least some Republicans may have to move toward the center to survive. It’s possible they could be influenced by energetic protest and lobbying campaigns by their constituents.
Like other groups across the political spectrum, we progressives are very good at blaming elected officials when they don’t follow through on their reform promises. But too many progressive Dems fail to realize that finger-pointing, while necessary, is only part of our responsibility. If we really want to see significant progressive change, especially full employment, we simply must escalate our protest activities to compel our elected and government officials to act.
At a white house meeting, FDR reportedly told the great African American labor leader A. Philip Randolph “Make me do it” in response to Randolph’s appeal for racial justice and economic reform. Roosevelt was not being a smart ass; He was underscoring an important law of politics, that elected officials need protest to galvanize them to act, and progressive politicians welcome it because it provides cover, as well as encouragement.
Regarding protest leadership, we have a great role model, whose 30+ foot stone image will be unveiled not far from the Lincoln, Jefferson and FDR Memorials on the National Mall in the capitol August 28th. The Martin Luther King, Jr. Memorial will not only honor the historic contributions of a great African American leader; It will also inspire — and challenge — coming generations of all races to emulate his strategy of militant but dignified nonviolent protest to achieve social and economic justice.
Let’s not forget that the Great March on Washington MLK and Randolph lead in 1963 was not only about racial justice. The twin goals were “Jobs and Freedom,” a challenge that echoes with prophetic relevance for our times. It was FDR who said “make me do it,” and MLK showed us the way, not only with one demonstration, but with a sustained commitment to mass protest. Now let’s make them do it.
By: J. P. Green, The Democratic Strategist, August 13, 2011
Divineless Intervention: Gov Rick Perry’s Unanswered Prayers
A few months ago, with Texas aflame from more than 8,000 wildfires brought on by extreme drought, a man who hopes to be the next president took pen in hand and went to work:
“Now, therefore, I, Rick Perry, Governor of Texas, under the authority vested in me by the Constitution and Statutes of the State of Texas, do hereby proclaim the three-day period from Friday, April 22, 2011, to Sunday, April 24, 2011, as Days of Prayer for Rain in the State of Texas.”
Then the governor prayed, publicly and often. Alas, a rainless spring was followed by a rainless summer. July was the hottest month in recorded Texas history. Day after pitiless day, from Amarillo to Laredo, from Toadsuck to Twitty, folks were greeted by a hot, white bowl overhead, triple-digit temperatures, and a slow death on the land.
In the four months since Perry’s request for divine intervention, his state has taken a dramatic turn for the worse. Nearly all of Texas is now in “extreme or exceptional” drought, as classified by federal meteorologists, the worst in Texas history.
Lakes have disappeared. Creeks are phantoms, the caked bottoms littered with rotting, dead fish. Farmers cannot coax a kernel of grain from ground that looks like the skin of an aging elephant.
Is this Rick Perry’s fault, a slap to a man who doesn’t believe that humans can alter the earth’s climate — God messin’ with Texas? No, of course not. God is too busy with the upcoming Cowboys football season and solving the problems that Tony Romo has reading a blitz.
But Perry’s tendency to use prayer as public policy demonstrates, in the midst of a truly painful, wide-ranging and potentially catastrophic crisis in the nation’s second most-populous state, how he would govern if he became president.
“I think it’s time for us to just hand it over to God, and say, ‘God: You’re going to have to fix this,’” he said in a speech in May, explaining how some of the nation’s most serious problems could be solved.
That was a warm-up of sorts for his prayer-fest, 30,000 evangelicals in Houston’s Reliant Stadium on Saturday. From this gathering came a very specific prayer for economic recovery. On the following Monday, the first day God could do anything about it, Wall Street suffered its worst one-day collapse since the 2008 crisis. The Dow sunk by 635 points.
Prayer can be meditative, healing, and humbling. It can also be magical thinking. Given how Perry has said he would govern by outsourcing to the supernatural, it’s worth asking if God is ignoring him.
Though Perry will not officially announce his candidacy until Saturday, he loomed large over the Republican debate Thursday night. With their denial of climate change, basic budget math, and the indisputable fact that most of the nation’s gains have gone overwhelmingly to a wealthy few in the last decade, the candidates form a Crazy Eight caucus. You could power a hay ride on their nutty ideas.
After the worst week of his presidency (and the weakest Oval Office speech since Gerald Ford unveiled buttons to whip inflation), the best thing Barack Obama has going for him is this Republican field. He still beats all of them in most polling match-ups.
Perry is supposed to be the savior. When he joins the campaign in the next few days, expect him to show off his boots; they are emblazoned with the slogan dating to the 1835 Texas Revolution: “Come and Take It.” He once explained the logo this way: “Come and take it — that’s what it’s all about.” This is not a man one would expect to show humility in prayer.
Perry revels in a muscular brand of ignorance (Rush Limbaugh is a personal hero), one that extends to the ever-fascinating history of the Lone Star State. Twice in the last two years he’s broached the subject of Texas seceding from the union.
“When we came into the nation in 1845 we were a republic, we were a stand-alone nation,” says Perry in a 2009 video that has just surfaced. “And one of the deals was, we can leave any time we want. So we’re kind of thinking about that again.”
He can dream all he wants about the good old days when Texas left the nation to fight for the slave-holding states of the breakaway confederacy. But the law will not get him there. There is no such language in the Texas or United States’ constitutions allowing Texas to unilaterally “leave any time we want.”
But Texas is special. By many measures, it is the nation’s most polluted state. Dirty air and water do not seem to bother Perry. He is, however, extremely perturbed by the Environmental Protection Agency’s enforcement of laws designed to clean the world around him. In a recent interview, he wished for the president to pray away the E.P.A.
To Jews, Muslims, non-believers and even many Christians, the Biblical bully that is Rick Perry must sound downright menacing, particularly when he gets into religious absolutism. “As a nation, we must call upon Jesus to guide us through unprecedented struggles,” he said last week.
As a lone citizen, he’s free to advocate Jesus-driven public policy imperatives. But coming from someone who wants to govern this great mess of a country with all its beliefs, Perry’s language is an insult to the founding principles of the republic. Substitute Allah or a Hindu God for Jesus and see how that polls.
Perry is from Paint Creek, an unincorporated hamlet in the infinity of the northwest Texas plains. I’ve been there. In wet years, it’s pretty, the birds clacking on Lake Stamford, the cotton high. This year, it’s another sad moonscape in the Lone Star State.
Over the last 15 years, taxpayers have shelled out $232 million in farm subsidies to Haskell County, which includes Paint Creek — a handout to more than 2,500 recipients, better than one out every three residents. God may not always be reliable, but in Perry’s home county, the federal government certainly is.
By: Timothy Egan, The New York Times Opinion Pages, August 11, 2011
“Enumerated Powers” And The Radicalism of The GOP Thought Process
Republican presidential hopeful Rick Perry chatted with The Daily Beast yesterday, and was asked about his understanding of “general welfare” under the Constitution. The left, the Texas governor was told, would defend Social Security and Medicare as constitutional under this clause, and asked Perry to explain his own approach. He replied:
“I don’t think our founding fathers, when they were putting the term ‘general welfare’ in there, were thinking about a federally operated program of pensions nor a federally operated program of health care. What they clearly said was that those were issues that the states need to address. Not the federal government. I stand very clear on that. From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.”
It’s worth pausing to appreciate the radicalism of this position. When congressional Republicans, for example, push to end Medicare and replace it with a privatized voucher scheme, they make a fiscal argument — the GOP prefers to push the costs away from the government and onto individuals and families as a way of reducing the deficit.
But Perry is arguing programs like Medicare and Social Security aren’t just too expensive; he’s also saying they shouldn’t exist in the first place because he perceives them as unconstitutional. Indeed, when pressed on what “general welfare” might include if Medicare and Social Security don’t make the cut, the Texas governor literally didn’t say a word.
Now, this far-right extremism may not come as too big a surprise to those familiar with Perry’s worldview. He’s rather obsessed with the 10th Amendment — unless we’re talking about gays or abortion — and George Will recently touted him as a “10th Amendment conservative.” Perry’s radicalism is largely expected.
It’s worth noting, then, that Mitt Romney seems to be in a similar boat. He was asked in last night’s debate about his hard-to-describe approach to health care policy, and the extent to which his state-based law served as a model for the Affordable Care Act. Romney argued:
“There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the 10th Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved by the states and the people.”
What I’d really like to know is whether Romney means this, and if so, how much. Because if he’s serious about this interpretation of the law, and he intends to govern under the assumption that powers not specifically granted to the federal government are reserved by the states and the people, then a Romney administration would be every bit as radical as a Perry administration.
After all, the power to extend health care coverage to seniors obviously isn’t a power specifically granted to the federal government, so by Romney’s reasoning, like Perry’s, Medicare shouldn’t exist. Neither should Social Security, the Civil Rights Act, the Clean Air Act, student loans, FEMA, or many other benchmarks of modern American life.
And if Romney doesn’t believe this, and he’s comfortable with Medicare’s constitutionality, maybe he could explain why the federal government has the constitutional authority to bring health care coverage to a 65-year-old American, but not a 64-year-old American.
By: Steve Benen, Contributing Writer, Washington Monthly-Political Animal, August 12, 2011
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
Justifying Cuts: A Well-Used But Misleading Medicaid Statistic
“Cash-strapped states are also feeling the burden of the Medicaid
entitlement. The program consumes nearly 22 percent of states’ budgets today, and things are about to get a whole lot worse.”
— Sen. Orrin Hatch (R-Utah), June 23, 2011, at a hearing of the Senate Finance Committee
“Medicaid is the lion’s share of that spending burden as it now consumes about 22 percent of state budgets now and will consume $4.6 trillion of Washington’s budget over the next ten years.”
— Former Kentucky governor Ernest Lee Fletcher (R), June 23, 2011, at the same hearing
“Across the country, governors are concerned about the burgeoning cost of Medicaid, which in fiscal 2010 consumed nearly 22 percent of state budgets, according the National Association of State Budget Officers. That’s larger than what states spent on K-12 public schools.”
— Washington Post front page article, June 14, 2011
When a statistic is universally tossed around as a certified fact, it’s time to get suspicious.
Such is the case with this oft-cited statistic that 22 percent of state budgets is being gobbled up by Medicaid, the state-federal program that provides health coverage for the poor and the disabled. Medicaid supposedly is even dwarfing what is spent on educating children and teenagers.
But note the phrase “state-federal.” There’s billions of dollars in federal money involved, and the “22-percent” statistic obscures that fact. Let’s dig a little deeper into the numbers.
The Facts
Medicaid was a central part of President Lyndon Johnson’s “Great Society” initiative in the mid-1960s. Each state administers its own Medicaid program, but with federal oversight, federal requirements—and plenty of federal dollars. On average, the federal government provides 57 percent of Medicaid funds.
Initially, Medicaid was focused low-income Americans, but elderly nursing home care has also become a big part of it. The new health care law would also greatly expand eligibility to people up to 133 percent of the official poverty line.
There’s no question that the recession has put pressure on Medicaid spending, as more people lost jobs or income and so became eligible for coverage. The new requirements of the health care law also will boost Medicaid spending.
The assertion that Medicaid is 22 percent of state spending, and thus now exceeds education spending, comes from an annual survey of the National Association of State Budget Officers (NASBO). But if you dig into the report — if you just go to page
one — you will see that this number includes the federal contribution, in what
is known as “total funds.”
If you want to see what states themselves are spending on Medicaid —“general funds” — you have to use another set of statistics.
As NASBO says on page one, “For estimated fiscal 2010, components of general fund spending are elementary and secondary education, 35.7 percent; Medicaid, 15.4 percent; higher education, 12.1 percent; corrections, 7.2 percent; public assistance, 1.9 percent; transportation, 0.8 percent; and all other expenditures, 27.0 percent.”
In other words, without the federal dollars included, Medicaid falls to second place, far behind education. It turns out that on average, states spend 15.4 percent of their funds on Medicaid — not 22 percent.
Brian Sigritz, NASBO’s director of state fiscal studies, said, “You are correct that there are several different ways of looking at Medicaid spending that you can use. If you consider just general funds, K-12 easily remains the largest component of general fund spending, as it historically has been.”
Indeed, when you look at NASBO’s historical data (table three of this report), it becomes clear that Medicaid spending, as a proportion of general funds, has remained relatively consistent since 1995 — about 15 percent — in contrast to the popular image of being a drain on state budgets.
Sigritz said that the two figures provide a different picture of state spending. “General funds gives you a sense of spending deriving from state revenue, while total funds gives you a sense of total state expenditures,” he said. “Typically when you discuss overall state budgets you examine the various funding sources that go into them including general funds, other state funds, bonds, and federal funds.”
The Office of the Actuary for Medicare and Medicaid makes this distinction. The 2010 Actuarial Report for Medicaid notes the broad figure, but then takes pains to add: “This amount, however, includes all Federal contributions to State Medicaid spending, as well as spending from State general revenue funds and other State funds (which for Medicaid consists of provider taxes, fees, donations, assessments, and local funds).” The report concludes: “When only State general revenues are considered, however, Medicaid spending constitutes an estimated 16.2 percent of expenditures in 2009, placing it well behind education.”
Antonia Ferrier, a spokeswoman for Hatch, defended the 22-percent figure, noting its wide use. “It is part of their budgets, and there are many different streams of funding that fund those state budgets (including federal funding, taxes, etc.) that fund their many programs,” she said.
But Colleen Chapman, a spokeswoman for the Georgetown University Center for
Children and Families, a policy and research center, said, “In the current budget debate, the data are being misused to argue that the Medicaid program in states is out of control and needs to be cut dramatically, when in fact, Medicaid is still much less of state spending than education and has not grown, as a portion of state budgets, in any way close to the mammoth way that others argue it has.”
The Pinocchio Test
We will label this with one of our rarely used categories: TRUE BUT FALSE.
(We still need to get an appropriate icon for this one — suggestions are welcome.)
Yes, the 22-percent figure is a valid number. But it is being used in an inappropriate way, and therefore is misleading. Hatch and Fletcher are only the latest in a long line of public figures — and news outlets — who have seized onto this number without apparently realizing that it is the wrong statistic to use. If people want to understand the impact the Medicaid is having on state budgets, politicians should begin to use the 15-percent figure — or at the least offer a caveat to the 22-percent number. Otherwise, there might be some Pinocchios in their future.
By: Glenn Kessler, The Fact Checker, The Washington Post, July 5, 2011
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