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
“An Irreducibly Tangible Question”: What Happens To The Uninsured If Health-Care Reform Is Dismantled?
When the Republican presidential candidates talk about health care, the discussion usually moves quickly toward the philosophical and the abstract.
Take Rick Santorum’s appearance at the Christian Liberty Academy last weekend in this Chicago suburb. Before a raucous crowd, the former senator from Pennsylvania portrayed President Obama’s health-care-reform law as an “affront to freedom.” In Santorum’s telling, the plan is not so much an attempt to reshape the health care system as the worm on a line meant to hook Americans on Big Government. “What tribute won’t you pay to the government if they can promise that if you give them more they will … take care of you?” he asked dramatically.
There’s no question that an ideological chasm over Washington’s proper role in health care separates Democrats and Republicans. And there’s no doubt that some Democratic strategists believe that average Americans will grow more tolerant of activist government if they see it providing them more direct benefits, such as health insurance.
But the debate over health care reform — which will intensify again next week as the Supreme Court hears oral arguments on challenges to the law’s mandate on individuals to buy insurance — involves more than competing philosophies or political strategies. At its core, it raises an irreducibly tangible question: what, if anything, to do about the nearly 50 million Americans who today lack health insurance.
Those millions of uninsured rarely intrude into the promises from GOP congressional leaders and the party’s presidential field to defend liberty by repealing Obama’s plan. But ignoring them doesn’t make them go away. If the 2012 election rewards Republicans with enough leverage in Washington to erase Obama’s initiative, they will face the choice of finding an alternative means to expand coverage or allowing the number of those without insurance to grow, with far-reaching consequences not only for the uninsured but for those with insurance as well.
Without some policy intervention, there’s little question that access to health insurance will continue to decline. Since 2000, the number of the uninsured has jumped from 36.6 million to 49.9 million, about one-sixth of all Americans.
That number would have been even higher if an additional 20 million people over that period had not obtained coverage through Medicaid and the Children’s Health Insurance Program. This growth partially offset the unrelenting erosion in employer-based care: The share of Americans obtaining coverage from their employer has declined every year since 2000, in good times and bad.
Earlier this month, the Congressional Budget Office forecast that, absent the new health-care law, the number of uninsured would rise to 60 million by 2020. That large a pool of uncovered Americans would create enormous strain for the health-care system.
The uninsured themselves would feel the most immediate effect, of course — studies show they are much more likely than those with coverage to defer or entirely forego needed care. But such an increase would also produce upward pressure on premiums for the insured as providers, especially hospitals, raise prices for those with coverage to offset the cost of uncompensated care to those without it. “The idea that repeal [of health-care reform] is somehow going to lower your premium is folly,” says Len Nichols, director of George Mason University’s Center for Health Policy Research and Ethics. More likely, he argues, repeal would increase premiums.
Obama’s health-care law, whatever its other virtues or flaws, represents a serious effort to break this cycle. CBO, echoing earlier projections, estimated last week that it would cover 33 million of the uninsured. No Republican has offered a plan to cover anywhere near so many. In 2009, the Congressional Budget Office estimated that the principal House Republican alternative to Obama’s proposal would cover only 3 million of the uninsured.
Both Santorum and Mitt Romney have proposed unspecified tax credits to cover some of those without coverage. Douglas Holtz-Eakin, president of the center-right American Action Forum, notes that Republicans believe that allowing interstate sale of insurance plans that offer more bare-bones coverage will reduce premium costs and expand access. Even so, he acknowledges, because so many of the uninsured have meager incomes, any tax credit big enough to meaningfully expand coverage still requires “a lot of money.”
But Republicans are proposing to shrink, not increase, federal health-care spending. Both Romney and House Republicans want to convert Medicaid into a block grant and cut federal spending on the program about in half by 2030. Even if those cuts provoked greater efficiency, the Urban Institute has estimated they could swell the number of uninsured by 14 million to 27 million beyond the effect of repealing Obama’s coverage expansion.
Leading Republicans almost all portray the health-care debate as a philosophical turning point between a limited central government and one they see as overweening and even tyrannical. But the debate also represents a much more practical turning point, between a society that attempts to approach universal health coverage and one that accepts millions of people living without insurance — with unavoidable costs for the uninsured and the insured alike.
By: Ronald Brownstein, The Atlantic, March 23, 2012
“Waiting For Mr. Roberts”: Is There A Constitutional Right To Contraception?
Is there a constitutional right to privacy underpinning the right to contraception? Suddenly, in this political climate, you can’t be sure, no matter what the U.S. Supreme Court said in 1965.
The high court ruled 7-2 in Griswold vs. Connecticut the state law forbidding the use of contraceptives was unconstitutional, in part because of due process, but mainly because it violated “the right of marital privacy.”
But the court of nearly 40 years ago that produced Griswold, the Warren Court, was one of the country’s most liberal, far more liberal than the current court and its consistent 5-4 conservative majority.
And Griswold’s finding of a right of privacy hiding in the “penumbra” of the Bill of Rights has been mocked over the years by conservatives. There is no absolute certainty that if the issue were brought before the Supreme Court today that Griswold would survive — though there is no certainty that it wouldn’t.
As recently as 2010, Justice Antonin Scalia, a conservative paladin speaking to an audience at UC Hastings College of the Law, dismissed the Griswold ruling as a “total absurdity.”
What exactly did the Griswold ruling say?
The late Justice William O. Douglas wrote the prevailing opinion. Three other justices joined him, and three more joined the judgment for different reasons.
“The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights,” Douglas wrote.
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions,” he said. “This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
The Connecticut case “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this [Supreme] Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The … very idea is repulsive to the notions of privacy surrounding the marriage relationship.
“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” Douglas said. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
The late Justice Potter Stewart, joined by Justice Hugo Black, dissented. Stewart said the Connecticut law might be “asinine,” but he could not find anything in the Constitution to forbid it.
“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone,” Stewart wrote. “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
Griswold applied to married couples, but has since been expanded by the courts to all adults.
Nearly four decades later, contraception is once again under fire. Essentially, the Obama administration ignored the old adage, “Never poke a bear with a stick.” For bear read the U.S. Catholic bishops, who don’t think contraception is proper practice for the 21st century.
In February, U.S. Secretary of Health and Human Services Kathleen Sebelius issued an interim rule, mandating health insurance plans for all employers, including religiously affiliated institutions, include coverage for birth control, sterilization and other preventive services. The rule caused outrage among Catholic leaders and top officials of the Republican Party.
Feeling the heat, Obama then announced a rule modification: Women may have access to free preventive care, including contraceptive services. But if a woman’s employer objects to birth control on religious grounds, then the insurance company will be required to offer the woman contraceptive care directly, without a co-pay.
The policy was slammed repeatedly on the campaign trail by Republican presidential contender Rick Santorum, a conservative Catholic who said even the amended rule was an attack on religious freedom.
The issue ensnared Santorum’s purportedly more sophisticated rival Mitt Romney.
When Republican senators unsuccessfully tried to enact a measure that would allow employers to opt out of any healthcare coverage to which they objected on religious or moral grounds, Romney at first told an interviewer he was “not for the bill.” When the reaction set in from conservatives, Romney said what he meant was that he “strongly supported” the Senate measure, but misunderstood the original question.
Conservative radio hammer Rush Limbaugh turned up the heat under the dispute after a young law school student testified before a congressional panel that contraception was a necessary part of women’s preventive healthcare, Limbaugh said she wanted taxpayers to pay for her having sex. He also called her a “slut” and a “prostitute.”
Last month, a group of U.S. states went further. Seven filed suit in Lincoln, Neb., contending the amended administration rule violates the First Amendment’s freedom of religion guarantee. The suit was joined by several Catholic organizations.
John Witte, Jonas Robitscher professor of law, Alonzo L. McDonald distinguished professor and director of the Center for the Study of Law and Religion Center at Emory University in Atlanta, told The Christian Post the courts probably will rule against the administration.
The Religious Freedom Restoration Act was enacted by Congress, and signed by President Bill Clinton, in 1993. The act prohibited government from putting a substantial burden on individual or group freedom of religion unless there is a compelling government interest. If there is such a compelling interest, the act said, government must show it is acting in the least restrictive way.
The U.S. Supreme Court, in a 6-3 decision in 1997, struck down most of the law. But the majority, led by Justice Anthony Kennedy, left in place the restriction on the federal government even though it excluded state actions.
That interpretation was confirmed in a unanimous 2006 Supreme Court decision involving the importation of natural drugs from South America for religious purposes. Though the natural substance was banned by federal law, Chief Justice John Roberts said in the opinion the Supreme Court agreed with the lower courts — the federal government had failed to demonstrate a compelling interest in banning the sacramental use of the drug.
That violated RFRA, Roberts said.
One bright spot for contraception defenders: Kennedy wrote the 6-3 majority opinion that struck down the Texas sodomy law in 2003, and told the government to get out of the bedroom. He often completes the 5-4 conservative majority now holding sway at the high court, but in 2003 he joined and led the court’s liberals, saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home.”
By: Michael Kirkland, UPI, March 11, 2012
“False Faith”: Did Justice Scalia Call All Non-Christians Irrational?
Last Sunday, conservative Justice Antonin Scalia addressed the Living the Catholic Faith Conference conference in Denver, Colorado. During his speech, however, the justice appeared to suggest that Jews, Muslims and other non-Christians are somehow less rationalthan people who share his faith:
In Washington, Scalia said, the pundits and media couldn’t believe in a miracle performed under their noses.
“My point is not that reason and intellect need to be laid aside,” Scalia said. “A faith without a rational basis should be laid aside as false. … What is irrational is to reject a priori the possibility of miracles in general and the resurrection of Jesus Christ in particular.”
“A priori” is a philosophical term which is usually used to refer to a claim that one has knowledge independent of experience, so it is unclear how anyone could reject the central Christian belief that Jesus Christ was resurrected from the dead under Scalia’s standard given that no living person was around to actually experience it. More importantly, though, the clear implication of Scalia’s statement appears to be than all non-Christians — or approximately two-thirds of the world’s population — are “irrational.”
If Scalia indeed holds this view, than it raises serious questions about whether he can set aside this belief when called upon to interpret a Constitution that requires all religious beliefs to be treated with equal dignity. Moreover, it could have profound implications for the burgeoning debate over whether the Obama Administration’s contraceptive access rules are upheld by the Supreme Court.
In 1990, Scalia wrote the seminal Supreme Court case interpreting the Constitution’s guarantee that all Americans can freely exercise their faith, Employment Div. v. Smith. In Smith, Scalia explained that a law does not suddenly become unconstitutional because someone raises a religious objection to it. Scalia explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” This is why a law ensuring access to contraception is constitutional even if several Catholic bishops object to it.
Smith, however, did not involve Christians — it involved members of a Native American faith that wanted to use the drug peyote in a sacred ritual even though that drug was banned. Hopefully, Scalia recognizes that the rule he announced in Smith must apply equally to faiths he views as “rational” and those he also may view as “irrational.”
By: Ian Millhiser, Think Progress, March 7, 2012
“Corporate Personhood”: Should Corporations Have More Leeway To Kill Than People Do?
Next week, the Supreme Court will hear a case with many potential ramifications for American and international law, and for corporate responsibility for human rights around the globe. The justices will be asked to decide whether the corporations to which they have been extending the rights of individuals should also be held accountable for crimes against human rights, just as individuals are.
The story behind the case begins in 1980, when my colleagues at the Center for Constitutional Rights and I helped obtain the first semblance of justice to the family of a slain 17-year-old Paraguayan youth named Joelito Filártiga.
A police inspector general in Asunción, the capital, had tortured the boy to death in retaliation for his father’s opposition to Paraguay’s brutal dictatorship. But the case was decided in New York, far from Paraguay, where the crime had occurred and where justice had proven impossible for the Filártiga family; the boy’s murderer was ultimately ordered to pay the family $10.4 million in damages.
The precedent-setting case was made possible by a remarkable decision by the United States Court of Appeals for the Second Circuit, which allowed it to be brought under a long-obscure law enacted by Congress in 1789. Known as the Alien Tort Statute, the law has been interpreted to mean that foreigners who commit heinous crimes abroad in violation of international law can be held accountable in the United States if they are present or do business here; the Supreme Court upheld its constitutionality in 2004.
Since that decision, dozens of successful alien tort claims have been brought in American courts – at first against individuals, and eventually against corporations. As a result, many foreign victims of egregious crimes – ranging from torture and slave labor to the execution of loved ones – that were sanctioned, endorsed or commissioned by corporations have found justice in our courts.
Yet in September 2010, a divided Second Circuit – the very court that had rendered the Filártiga decision – held that only individuals, and not corporations, can be sued under the statute.
That ruling, in a case known as Kiobel v. Royal Dutch Petroleum, came less than a year after the much more famous – and criticized – Supreme Court decision in Citizens United, which removed restrictions on political spending by contributions and wildly expanded the concept of corporate personhood.
Together, these decisions have triggered a wave of outrage among advocates for human rights, which see in them a signal from the courts that corporations have extensive rights but few responsibilities under American law.
On Tuesday, the Supreme Court will hear arguments on the alien torts ruling, which could produce its first decision regarding corporate personhood since Citizens United.
The question of whether foreign corporations doing business in the United States can be sued here for crimes committed elsewhere has arrayed international businesses against human rights advocates, with many “friend of the court” briefs filed on both sides. Four governments have also chimed in: Britain, the Netherlands and Germany for the corporate defendant and the United States on the side of the Nigerian plaintiffs.
The story behind the Kiobel case is compelling: The plaintiffs are members of the Ogoni people in Nigeria’s Niger Delta, where Royal Dutch Shell had extensive oil operations in the 1990s through contracts with the brutal military dictatorship that held power at the time. The region is widely considered a zone of calamity, in terms of both environmental and human rights. In the suit, Royal Dutch Shell was accused of assisting the Nigerian government in torturing and, through sham trials, executing Ogoni activists who had threatened to disrupt Shell’s operations because of the devastating health and environmental effects of unregulated drilling practices. The plaintiffs are either victims of torture themselves or had relatives who were executed. Esther Kiobel, the plaintiff after whom the suit is named, is the widow of a victim.
If the Supreme Court rules in favor of Royal Dutch Shell and against the plaintiffs, multinational corporations – particularly in mining and other extractive industries – could draw the lesson that it is now safer to forge alliances with autocratic regimes that have poor human rights records because they will not be judged culpable in the way individuals can be.
In fact, many “friend of the court” briefs filed by corporations in this case contend that the companies are committed to voluntarily complying with human rights norms – but that standards set by the United Nations and other public and private organizations are mere guidelines that are not enforceable as legal norms. What they are really saying is that there are legal norms against torture and such, but that they can’t be enforced against corporations because they have never been enforced under international law – a claim the plaintiffs strongly contest.
This leaves the Supreme Court with an extraordinary choice to make, in juxtaposition to its previous ruling in Citizens United: whether to accept an argument that, in effect, leaves corporations less culpable than individuals are for human rights violations committed abroad – or whether to hold that if a 200-year-old law can be used to hold individual violators to account, it can be used against corporate violators as well.
A decision affirming that Shell should go unpunished in the Niger Delta case would leave us with a Supreme Court that seems of two minds: in the words of Justice John Paul Stevens’s dissent from Citizens United, it threatens “to undermine the integrity of elected institutions across the nation” by treating corporations as people to let them make unlimited political contributions, even as it treats corporations as if they are not people to immunize them from prosecution for the most grievous human rights violations.
A more startling paradox is difficult to imagine.
By: Peter Weiss, Op-Ed Contributor, The New York Times, February 25, 2012
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