Justice Kennedy’s “Nuanced View”: A Bad Beginning And A Better Ending
The Constitution’s words enabling Congress to “regulate commerce…among the several states” gives the United States broad authority over economic matters — although non-economic regulation is far more suspect. Early in today’s argument, however, several of the justices appeared poised to impose an entirely novel limit on Congress’ authority — suggesting that laws which require, in Justice Kennedy’s words, an “affirmative duty to act to go into commerce” is somehow constitutionally suspect. So there were no shortages of pointed questions about the Affordable Care Act’s requirement that everyone either carry health insurance or pay slightly more income taxes.
There are two reasons why this requirement is necessary. The first is that, because the law prohibits insurers from denying coverage to patients with preexisting conditions, it must also ensure that healthy people enter the insurance market before they become sick. 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. The second reason relates to a problem with our health system that long predates the Affordable Care Act. Because emergency rooms must provide at least some degree of care free of charge to people who cannot afford it, these costs wind up being transferred to persons with insurance — driving up annual premiums as much as $1,100 on the average patient.
Initially, the Court’s conservatives appeared highly credulous of the plaintiffs’ false claim that upholding the health reform would necessarily enable the federal government to do absolutely anything. Solicitor General Don Verrilli addressed this question by explaining that the health care market is unique in that it is the only market that everyone inevitably participates in — we all get sick at some point — and that, because of health care’s sudden and unexpected costs, people typically pay their health bills through insurance. Thus, he explained, because everyone is already caught up in the health care market, the Affordable Care Act does not impose any kind of “duty…to go into commerce” — it merely tells people who are already in the health care market to make sure they pay for their health costs through insurance.
While Verrilli was still at the podium, the Court’s conservatives did not seem to buy this claim. A ray of hope emerged at the end of the oral argument, however, when Justice Kennedy expressed a somewhat nuanced view:
[T]he government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.
There’s a lot going on in this statement. On the one hand, Kennedy is clearly skeptical that, if the Court says this market is unique, the government won’t simply argue that the next market is also unique in the next case. On the other hand, Kennedy also appears sympathetic to the second reason why the mandate is essential — that the problem of uninsurance leads to billions in health care costs being transferred to other health care consumers. A young person who forgoes health insurance is “uniquely proximately very close” to affecting the health care costs of others, and that may be enough to get Kennedy’s vote to uphold the law.
The big loser in all of this debate, however, is the Constitution itself. The Constitution says nothing about unique markets. Or about the need to impose artificial Congress authority to regulate the nation’s economy. It simply says that Congress can “regulate commerce.” The idea that a law which regulates 1/6 of the nation’s economy is not regulating commerce is, frankly, absurd. Nor was there ever any risk that a decision upholding health reform would lead to all things being permissible. There are many things that are not commercial — federal murder laws, assault laws, child neglect laws or sexual morality laws, for example. A law regulating our entire national health care market, however, is clearly and obviously constitutional.
Justice Kennedy may inevitably vote to uphold the law — he may even bring Chief Justice Roberts along with him — but, whatever the Court does this term, it appears increasingly likely that we live under the constitution of Anthony Kennedy, and that we no longer live under the Constitution of the United States.
By: Ian Millhiser, Think Progress, March 27, 2012
“Exotically Countercultural”: The Unhappy Triumph Of The Marketplace
This objection to Obamacare’s individual mandate, by Jonathan Adler at the libertarian Volokh Conspiracy website, grabbed my attention:
“Virtually everyone” may acquire health care—but “virtually everyone” is not “everyone.” Most people may purchase health care at some point in their lives, but some will not. Some people will refuse to purchase health care for religious reasons. Some will not purchase health care because they are lucky enough not to need such care before a sudden death. Still others may decide not to purchase health care because they have chosen to remove themselves from commerce—consider a survivalist or other person who decides to live in a shack, growing their own food, and not engaging in commerce with others.
Consider Adler’s latter example: It strikes me that the vast majority of Americans would find the idea of “not engaging in commerce with others” to be exotically countercultural at best, possibly antisocial or even deviant. Such a reaction is symptomatic of the fact that the marketplace has long enjoyed pride of place in Americans’ moral psychology. “The chief business of the American people is business,” as President Calvin Coolidge famously said.
This ethos has made proper small-l liberals of us, hasn’t it? Americans have been taught by the libertarian right and the Clintonian middle to believe that a commercial relationship between nations—trade—is the only way to achieve lasting international harmony. At least before the great stock market crash of 2008, CEOs were like cult heroes in the popular imagination. From the pluckiness of Horatio Alger’s heroes to the theology of Joel Osteen, success in the marketplace has been seen as an outward confirmation of inward virtue and divine blessedness.
So it’s with some sense of schadenfreude that I see conservatives of the classical liberal variety chafing at the requirement to buy health insurance, calling it an attempt by Congress to “create commerce.” I’m fully aware of the contractarian basis for this objection: that a forced purchase is not a legitimate commercial exchange.
But the paleocon in me responds this way: This is the antitraditional bed you’ve made for us. Now lie in it.
By: Scott Galupo, U. S. News and World Report, March 27, 2012
“No Nutritional Value”: A Farewell To Newt
It’s not easy letting him go. Not easy at all. Sort of like swearing off bedtime Ben & Jerry’s: there’s valor and the promise of self-improvement in the sacrifice, but also the sad awareness that the world just got a little less naughty. A little less fun.
No matter. It’s time to cut Newt out of our diets.
He has no nutritional value, certainly not at this point, as he peddles his ludicrous guarantee of $2.50-a-gallon gasoline, a promise that would be made only by someone with his own bottomless strategic reserve of crude. Doubly oily entendre intended.
There were calls for him to desist two weeks ago, after he lost Alabama, which abuts his home state of Georgia. But they fell on a deaf Newt.
There were fresh appeals last week, when he failed to wring even one measly delegate from Illinois on Tuesday and then Louisiana on Saturday. But Newt doesn’t need anything as prosaic as delegates, so long as there’s still pocket lint from Sheldon Adelson and the warmth of Callista’s frozen smile.
If he refuses to quit, we in the news media must quit him. Starve him of his very sustenance: attention. Exert a kind of willpower that we’ve lacked in this primary, which we turned into too much of a circus by encouraging too many clowns.
We’ve begun. As the weekend came to a close, The Times’s Trip Gabriel reported that Gingrich’s “full-time traveling press corps is down to a handful of embedded television reporters.” The Associated Press, The Atlanta Journal-Constitution and even Politico had packed up their bags. I envision Newt as a larger, grayer, windier version of the little boy at the end of “Shane,” watching the last of these stubborn scribes recede into the horizon, begging them for one last sweet tweet, promising a tasty sound bite about Trayvon Martin or Robert De Niro or … “The Hunger Games!” There must be some harbinger of cultural decline to rail about there! Do “Hunger Games” contestants use food stamps? Those are always good for a diatribe or three.
I implore Fox News to pull up its drawbridge, CNN to bolt its doors. If a Newt falls in the forest and not a single news anchor listens, can he really hang around?
He says he’s propelled by a desire to promote “big ideas,” but his candidacy has devolved into ever smaller talk and ever more desperate sideshows that drag an already undistinguished debate ever lower. Late last week he actually resurrected the Obama-as-Muslim bile, saying the president’s policies raise legitimate suspicion in voters’ minds.
In truth Newt 2012 has never been a lofty enterprise. Although he loves to tout his intellectualism, he got what brief traction he did for visceral and theatrical reasons, with fits of rage and flights of fancy.
He took off when he lashed out at “the elites,” pretending not to be one of them. He soared when he savaged the news media. He rocketed to a colony on the moon.
And he illustrated a dynamic that will survive this campaign season and that we should all think about: how much the profusion of cable channels, Web outlets, other news platforms and commentary of all kinds (including this column) rewards flamboyance, histrionics and a crowded field. A brash candidate is never more than a bellow away from three minutes of air time or two paragraphs somewhere. The beast is ravenous, and I don’t mean Newt.
Yes, the serial surges of the Republican contest since August had grounding in a fickle electorate and changeable polls. But we eagerly abetted them. En route to our beige destiny of Mitt, we craved color. And showcased it.
Newt is one of the few surviving peacocks, especially if you discount Ron Paul, who’s less peacock than emaciated ostrich — never airborne, head in the sand — and so consistently discounted that no one even bothers to implore him to fold his tent. No one can remember that he pitched one.
It’s time to forget Newt as well. His delegate count is closer to Paul’s than to Rick Santorum’s. His strategy — a generous noun — hinges on a replay of the 1920 Republican convention, which picked Warren G. Harding on the 10th ballot.
The 10th ballot? That’d really send the Republican nominee into the general election with a head of steam. I can see the bumper stickers now. Newt: Battle ready. Ballot hardened.
Great politicians are memorialized with holidays, monuments, libraries. For Newt I think an ice cream flavor is in order, something in the clogged vein of Chubby Hubby or Chunky Monkey, although not so physique-focused. Nutty Professor is too obvious a suggestion, though it opens the door to pralines, aptly Southern.
Maybe Peaches ’n’ Scream? That would honor the state he comes from while acknowledging the state he’s been in — unsubtle, overwrought. Not qualifying for the Virginia primary was a blow akin to Pearl Harbor. The Palestinians are “an invented” people.
Newt is empty calories. A pointless pint of them.
By: Frank Bruni, Op-Ed Columnist, The New York Times, March 26, 2012
“A Matter Of Basic Values”: Burden Of Proof In The Battle Over Voting Rights
One of the most predictable characteristics of the battle over voting rights in this country, which now largely centers on Republican efforts in a number of states to institute various photo ID requirements, is a very different take on the burden of proof. Again and again, progressives point to the signal lack of evidence of any “voter fraud” problem anywhere. In Texas, the state that has filed suit to strike down the entire preclearance procedure of the Voting Rights Act of 1965 because the Justice Department refused to preclear its new photo ID law, there have been during the last two election cycles a grand total of four allegations made to the Attorney General’s office of people ineligible to vote impersonating qualified voters. As Think Progress’ Josh Israel notes, these are pretty damning statistics:
Though [Gov. Rick] Perry has claimed Texas has endured “multiple cases” of voter fraud, even of the paltry 20 election law violation allegations the state’s attorney general handled in the 2008 and 2010 elections, most related to mail-in ballot or campaign finance violations, electioneering too close to a polling place, and a voter blocked by an election worker.
It is unclear how many Texans attempt to illegally check out library books while impersonating neighbors or dead people, each year. But in a state of more than 25 million people, the odds of being even accused of voter impersonation in the Lone Star State are less than one in 6,250,000.
Conservatives typically ignore these numbers and instead of answering “why” new and burdensome voting requirements need to be instituted, ask “why not,” comparing proposed voting hurdles to the identification often demanded for various legal or commercial transactions, or more indirectly, asking why honest people would object to verification of their identities? Others rely on public opinion polls to “prove” the reasonableness of voter ID laws, a particularly shaky argument for conservatives who in other contexts believe unnecessary regulations and mandates are intolerable regardless of public support for their purposes.
Aside from the obvious fact that people in both parties understand these requirements would have a disproportionate impact on people more likely to vote Democratic, this kind of dispute often misses the rather obvious point that many conservatives do not view participation in elections as a fundamental right of citizenship. Occasionally they even admit it, but more often that conviction is simply reflected in how the question of “voter fraud versus voting rights” is framed. Anyone viewing the right to vote as fundamental is most unlikely to support burdens placed upon it without a compelling case to show the burden is necessary. “It wouldn’t hurt you” arguments or comparisons to other transactions that do not involve the exercise of fundamental rights are irrelevant.
No wonder a growing number of conservatives favor repeal of the Voting Rights Act altogether. The reasoning is closely parallel to the now-common-place argument on the Right that the discrimination against people of color is largely a thing of the past, and that exceptional government efforts to fight such discrimination amount to a racist effort to discriminate against white people. If that’s the case, then “why not” make access to the ballot just like any other public service, many of which are conditional on compliance with all sorts of rules?
So while the debate over voting in this country often sounds like a competition of people with competing views of the facts, it’s really not: it’s a matter of basic values, and of the burden of proof borne by those who support or oppose a right to vote.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 26, 2012
“The Power To Regulate Commerce”: Constitution, Court’s Precedent On Affordable Care Act’s Side
In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the lawsuits challenging the Affordable Care Act have no basis “in either the text of the Constitution or Supreme Court precedent.” And Silberman is right. The Constitution gives the United States power to “regulate commerce … among the several states,” and there is simply no question that a law which regulates one sixth of the nation’s economy regulates the nation’s commerce.
This not a particularly new idea. As Chief Justice John Marshall put it nearly two centuries ago, there is “no sort of trade” that the words “regulate Commerce” do not apply to, and these words give the United States “full power over the thing to be regulated.” The Affordable Care Act regulates trade in healthcare services, and thus America has the full power to regulate this important market.
In challenging the Affordable Care Act, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has no basis in the Constitution itself, it eliminates any bounds on what judges can do to impose their will on the American people. If judges are free to ignore the Constitution just this once, they can do it whenever they want, and there will no longer be any limits whatsoever on judicial discretion.
In other words, if judges have the power to strike down the individual mandate, there is nothing preventing the Supreme Court from forcing you to eat broccoli.
By: Ian Millhiser, U. S. News and World Report, March 26, 2012
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