Government by the Week: Is A Government Shutdown The End-Game For The GOP?
Parents have begun arranging alternative child care for their preschoolers, uncertain of whether their Head Start program will be there when they need it. The Social Security Administration is unable to open new hearing offices to handle a backlog of appeals. The Pentagon has had to delay equipment repairs. There is chaos throughout the federal government, as Robert Pear reported in The Times on Tuesday, because a riven Congress has forced agencies to operate on a week-by-week basis.
Yet, on Tuesday, the House passed another short-term spending bill. This one keeps things going for all of three weeks. The Senate will almost certainly join in shortly to avoid an impending shutdown on Friday, the result of the stopgap bill from two weeks ago.
These slipshod exercises in governance were choreographed by House Republicans, who knew that neither the Senate nor President Obama would ever accept their original proposal to gut nonsecurity discretionary spending with $61 billion in cuts through September, including riders to end financing for Planned Parenthood and the health care law. They had hoped to use the pressure of a potential shutdown to achieve much of their goal, but, so far, all they have accomplished is a cut of about $10 billion, mostly from earmarks or programs that the president himself proposed to cut. (The new bill cuts $6 billion.)
House Republican leaders, who say they do not want a government shutdown, have, so far, held off their more fanatical freshmen, who want to slash everything in sight. But the leadership cannot do so forever, and the evidence of that was clear on Tuesday. More than 50 Republicans refused to go along with the three-week resolution because it did not cut enough. Several specifically complained that it allowed financing for Planned Parenthood and the health care law to continue.
This is not a group that cares much for pragmatic compromise, and the three weeks are just a timeout. Representative Mike Pence of Indiana, a Republican who voted no on the new bill, spoke for many of his colleagues when he said the budget could not be resolved without a willingness to shut down government. “By giving liberals in the Senate another three weeks of negotiations,” he said, “we will only delay a confrontation that must come.”
He is absolutely right about that. If Democrats, including the president, do not draw a clear line soon, making their priorities and their limits unmistakable, they will be harried by these kinds of votes for years. Even in the unlikely case that an agreement is reached in three weeks to finance the government through September, a different vote will be necessary just a few weeks from now to raise the debt ceiling. Republicans have already vowed to vote that down — even though it could be financially disastrous — if they do not get their way. And then there is the vote for the fiscal 2012 budget, which begins Oct. 1, and then the year after that.
At some point, Mr. Pence will get his confrontation. If Republicans continue to press for cuts of tens of billions from discretionary spending, setting back the economic recovery largely for ideological purposes, Democrats will have to say no, even if that results in a short-term shutdown. The American people will be able to figure out who is at fault. Responsible governing means agreeing quickly to a deal to finish out the fiscal year, and then starting a serious talk about entitlement programs and taxes — the real causes of a soaring deficit.
By: The New York Times, Editorial, March 15, 2011
Republicans Stampede Toward The Cliff
Interesting findings from the NBC/WSJ poll. Asked about deficit reducing options, the options the public overwhelmingly favors are ones Democrats favor, and the options they overwhelmingly oppose are ones Republicans are promising to propose:
[The survey] listed 26 different ways to reduce the federal budget deficit. The most popular: placing a surtax on federal income taxes for those who make more than $1 million per year (81 percent said that was acceptable), eliminating spending on earmarks (78 percent), eliminating funding for weapons systems the Defense Department says aren’t necessary (76 percent) and eliminating tax credits for the oil and gas industries (74 percent).
The least popular: cutting funding for Medicaid, the federal government health-care program for the poor (32 percent said that was acceptable); cutting funding for Medicare, the federal government health-care program for seniors (23 percent); cutting funding for K-12 education (22 percent); and cutting funding for Social Security (22 percent).
But the public demands deficit reduction, right? Well, actually, they care more about jobs:
In the poll, eight in 10 respondents say they are concerned about the growing federal deficit and the national debt, but more than 60 percent — including key swing-voter groups — are concerned that major cuts from Congress could impact their lives and their families.
What’s more, while Americans find some budget cuts acceptable, they are adamantly opposed to cuts in Medicaid, Medicare, Social Security and K-12 education.
And although a combined 22 percent of poll-takers name the deficit/government spending as the top issue the federal government should address, 37 percent believe job creation/economic growth is the No. 1 issue.
Republican pollster Bill McInturff, who conducted the survey with Democratic pollster Peter D. Hart, says these results are a “cautionary sign” for a Republican Party pursuing deep budget cuts.
He points out that the Americans who are most concerned about spending cuts are core Republicans and Tea Party supporters, not independents and swing voters.
“It may be hard to understand why a person might jump off a cliff, unless you understand they’re being chased by a tiger,” he said. “That tiger is the Tea Party.”
By the standards of these things, those are extremely sharp comments from McInturff. Leaders are usually more worried about internal threats than external threats. Boehner needs to make sure he doesn’t get deposed as speaker before he worries about winning a showdown with Democrats.
The specifics of the fight — Republicans promising to cut overwhelmingly popular programs, being willing to shut down the government, and pushing a plan that private analysts predict will reduce jobs — put them in a very tough position. Republicans are working really hard to buck each other up and ignore data about public opinion. Democrats have the upper hand here. President Obama may decide to cut a deficit deal, but both the politics and the policy say he should hand the Republicans their head first.
By: Jonathan Chait, The New Republic, March 3, 2011
On Health Care, Justice Will Prevail
The lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.
In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.
Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
By: Laurence H. Tribe, Op-Ed Contributor, New York Times: Professor, Harvard Law School and author of “The Invisible Constitution”, February 7, 2011
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