The limit on Congressional power: Democracy

Well, I highlighted this point in a post yesterday, so it’s nice to see the same thing from a Yale Con Law Professor.  The conservatives on the Supreme Court keep insisting on a “limiting principle.”  I.e., if the government can force you to buy health insurance, what’s to stop them from forcing you to buy broccoli, a cell phone, etc.  From Akhil Amar’s interview with Ezra Klein (then again, he’s probably just a terrorist with a name like that):

EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.

ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. [emphasis mine]  That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

Take that “limiting principle” unelected conservative Justices!


Liberal Bias 101

A few weeks ago a graduate student whom I oversee (I supervise the Public Administration PhD students who get undergraduate teaching experience in our Political Science courses) wrote me that somebody at the Pope Center for Higher Education (if you are not familiar, try this) had received a copy of his syllabus and wanted to discuss the apparent liberal bias.  John chose to simply not respond.  Well, the emailer has now written up the conservative deconstruction of John’s syllabus on the Pope website.  I really got quite the kick reading this as I soon realized that every single article the writer was complaining about was from my very own syllabus (John had served as my PS 201 TA and I’m happy for them to use the same readings I do when they teach their own section).  A sampling:

Overwhelmingly, the readings blamed Republicans and the Constitution for the country’s problems.

The first article assigned for Strange’s class is “Our Godless Constitution” by essayist Brooke Allen. It opens with a swipe at George W. Bush’s intelligence and character. “It is hard to believe that George Bush has ever read the works of George Orwell,” Allen writes, “but he seems, somehow, to have grasped a few Orwellian precepts.”

Allen goes on to discuss the Constitution, minimizing the influence of religion in the creation of the Constitution by taking a close look at the non-Christian pronouncements of four of our Founding Fathers: Thomas Paine, Benjamin Franklin, Thomas Jefferson, and John Adams. She seems to be unaware that only one of the four (Franklin) was actually in attendance at the Constitutional Convention. Nevertheless, the point in assigning the essay to students is clear: the Constitution isn’t what you thought it was, having been devised by people whose religion stemmed from a political agenda rather than genuine conviction.

There is no rebuttal in the assigned readings to demonstrate the profound effect religion had on early Americans…

Conservative jurisprudence also takes a rhetorical beating in Strange’s class. For instance, Stuart Taylor’s essay in the National Journal, “Is Judicial Review Obsolete?” complains that conservative jurists who argue for judicial restraint are hypocritical. Although conservatives say they want judicial restraint, Taylor says, “they have used highly debatable interpretations of original meaning to sweep aside a raft of democratically adopted laws.” In a 2006 article for Slate magazine, Seth Rosenthal makes a similar point. He claims that conservative jurists’ restrictions on government involvement in people’s lives are, in themselves, examples of intrusion in people’s lives.

So, I’m not actually going to waste my time getting into a debate on these points with someone who holds a 2010 B.S. in Biology.  I haven’t seen John’s complete syllabus, but to the degree it matches mine, it’s pretty clear that Cheston is cherry-picking and substantially mis-characterizing the basic nature of the class and the main point of these readings.  But, whatever.  I did try to honestly ask myself, though, if I am doing my students a disservice by not having more “balanced” readings in this area.

My answer?  Absolutely not.  And here’s why… it all comes back to the asymmetry.   I have conservative students all the time who are literally 180 degrees wrong on what judicial activism is really all about.  I’ve never had a liberal student make a misguided and uninformed argument about judicial restraint.  I definitely have students all the time who come into class seemingly thinking that Jesus basically wrote our Constitution.  Again, I’ve never had a liberal student try and tell me that the Constitution was written by radical atheists.  Similarly, I’m not sure what would “balance” George Packer’s fabulous article on obstructionism in the modern Senate and somehow deny that it has reached new procedural heights with Republican use of the filibuster, etc.

One of the major things I try and do in PS 201 is disabuse students of ideas they have about government that are simply wrong.  Whether you want to blame Fox News, Rush, or whatever, the simple fact is that my students are way more likely to hold false views that represent a conservative political perspective and I don’t apologize for one second for trying to change that.  There is the occasional very liberal student who might hold very uninformed views on the nature of capitalism, etc., and I’m quite happy to correct them as well.   There’s not, however, a corresponding left-wing noise machine (don’t even try MSNBC) filling them with false information.  Short version: if one of my goals is to correct widespread misunderstanding and misinformation about our government it’s going to look like liberal bias, but that’ s not actually what it is.

I’m thinking maybe I need a new sub-heading for my blog: “It’s the asymmetry, stupid.”

Race, Trayvon, and knee-jerk conservatism

Drum posted this today:

Conservative Josh Barro tells his fellow conservatives why they get attacked on racial issues so often:

Why do conservatives catch such heat? It’s probably because there is still so much racism on the Right to go alongside valid arguments on issues relating to race and ethnicity. Conservatives so often get unfairly pounded on race because, so often, conservatives get fairly pounded on race.

And this is the Right’s own fault, because conservatives are not serious about draining the swamp. In recent months, both Newt Gingrich and Rick Santorum have gotten questions at public events that referred to President Obama being a Muslim. Neither candidate corrected the questioner. Santorum later told a reporter that’s “not his job.” PPP polls in Mississippi and Alabama have found that about half of Republican voters believe Obama is a Muslim, and others aren’t sure.

….There has been a clear strategic calculation here among Republican elites. Better to leverage or at least accept the racism of much of the Republican base than try to clean it up….My challenge to conservatives who feel they get a bum rap on race is this. Stand up for yourself and your colleagues when you feel that a criticism is unfair. At the same time, criticize other conservatives who say racist things, cynically tolerate racism in the Republican base, or deny the mere existence of racial issues in America today. The conservative movement desperately needs self-policing on racial issues, if it ever hopes to have credibility on them.

This made me think of various postings by conservatives I’ve seen about the Trayvon Martin case on Facebook.  Sure, maybe the case is more complicated than it initially looks, but among things we know for sure is that an armed and clearly  racially hostile white man pursued and shot an unarmed Black teenager.  How this should not at dead minimum be adjudicated in a courtroom would seem to be something people across the political spectrum could agree upon.   Here’s what I think has happened, though.  As the case has become a liberal cause célèbre all too many conservatives have felt duty bound to try and defend Zimmerman and the Sanford police simply because liberals were attacking them.  Now that’s just stupid.  And, it certainly does not help their image with regards to race.

More broccoli

Well, my post on broccoli and slippery slopes certainly got quite the conversation going.  Was not planning on returning to it, but was really quite surprised to see that supposed intellectual giant, Antonin Scalia, relying on this tired and intellectually lame argument in oral arguments.  First, I’ll highlight Itchy’s wonderfully pithy response:

“What’s to stop the government making you buy broccoli?”

Democracy. Next question.

And now on to Drum (actually a quote from an attorney correspondent of his:

Toobin’s hair on fire response is interesting because I think legal watchers deep down believed that the Court would not be so superficial as to unhinge established jurisprudence for an ideological cause. It’s a fun parlor game, but they figure that when sobriety prevails the court will bow to precedent where — as here — the issue is squarely within existing precedent. Well, no, and they are perfectly free to channel right wing bullshit points such as inactivity vs. activity.  I think this really rattled Toobin to see justices behaving like congressmen from Alabama in their arguments.  [emphasis in original]

Lithwick points out that no one on the right discussed the case law. I mean …. why, who needs it!?

Really, this whole activity/inactivity bit is just a conservative canard.  I’ll go back to Itchy who said it best in comments (I was going to write much the same thing myself, but since he’s already gone to the trouble):

“the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act.”

What does this actually mean? It seems like semantics.

Paying for an interstate highway is an affirmative act. Paying to educate children is an affirmative act. Paying for a drone strike is an affirmative act. Water treatment plants, garbage collection, prisons, fire services, food safety, space exploration … all affirmative acts.

What is a negative act?

“Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm … ”

Guess what I’m saddled with paying for? National parks I’ve never visited, highways I’ve never traveled. Schools I’ve never gone to, clean air I’ve never breathed, safe food I’ve never eaten. Fire protection for property I don’t own, the killing and imprisonment of people who never harmed me. Fancy robes and mahogany desks for Supreme Court justices who rule against my wishes.

What a scam that all my money is going to rescue other people.

It actually does not take a Constitutional scholar to see through ideological BS posing as Constitutional scholarship.  Though, I’ll close with a quote from an actual Constitutional scholar, Reagan’s Solicitor General, Charles Fried:

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.

And if you’re still with me, you should read Ezra’s whole interview with Charles Fried– it’s really quite devastating to the conservative case.

Photo of the day

Wow, great set of “a collection of kisses” via Alan Taylor.  Really hard to choose just one.  Ahhh, I’ll just go political:

Petty Officer 2nd Class Marissa Gaeta (left), assigned to the amphibious dock landing ship USS Oak Hill, kisses her partner Petty Officer 3rd Class Citlalic Snell, following the ship’s return to homeport after a three-month deployment in the Caribbean, in Virginia Beach, Virginia, on December 21, 2011. History was made on a Virginia Beach pier on Wednesday when the two women sailors, one just home from 80 days at sea, became what was believed to be the first same-sex couple to share the Navy’s traditional first kiss.(Reuters/U.S. Navy photo by Mass Communication Specialist 2nd Class Joshua Mann)

And heck, I’m feeling very Mad Men this week, and the season 5 premiere was entitled, “A Little Kiss” so here’s an added bonus:


Freedom, selfishness and the individual mandate

Possible the best piece I have read on health care and the Supreme Court.  Read it! (I’ll be checking for click-throughs).   Anyway, it’s Dahlia Lithwick deconstructing the conservative complaints about how the individual mandate is an assault on “freedom.”  Here’s a bit:

It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm—even though, one day that will describe all of us. Or as Justice Antonin Scalia later puts it: “These people are not stupid. They’re going to buy insurance later. They’re young and need the money now.” (Does this mean that if you are young and you pay for insurance, Scalia finds you “stupid”?)…

Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.”

Plenty more, and then this awesome conclusion:

 This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

A penalty vs. a tax

This whole Supreme Court mess (at least the individual mandate) portion could have been entirely avoided if the mandate simply functioned as a tax credit instead of a penalty.  Basically, you raise everybody’s rates by some fixed amount and then give a tax credit/rebate of $XXX to everybody who purchases health insurance.  Simple.  And the constitutionality is beyond questions– we do this all the time for all sorts of things.  Instead, by trying to avoid the necessary changes to the tax code, i.e., “raising taxes” (heaven forbid) or by claiming that you have to pay a “tax” rather than a “penalty” for failure to purchase insurance, this line of attack is left open.  Functionally, of course, these matters are basically identical, as Ezra explains:

By now, you should know how the individual mandate works: Starting in 2016, those who don’t carry insurance will be assessed a $695 fine, per year, or 2.5 percent of their income, whichever is higher. There are exemptions for those who can’t afford health-care insurance, but that’s the basic gist of it.

Here’s how Paul Ryan’s health-care plan works: Individuals who purchase insurance will get a $2,300 tax credit. Individuals who don’t purchase insurance forgo the tax credit. There’s no affordability clause such that, say, someone who can’t afford health insurance nevertheless gets the tax credit.

If anything, Ryan’s plan might be a little harsher on those who choose to go without insurance. There’s no actual enforcement mechanism behind the individual mandate. The IRS can’t dock your pay or throw you in jail. If you choose not to pay it and you simply ignore the letters the government sends your way, nothing actually happens.

Conversely, under Ryan’s plan, if you don’t buy insurance, you really don’t get the tax credit, and so you do, in effect, pay a large tax penalty compared to a world in which you did buy insurance — larger, in fact, than the penalty under the individual mandate.

To an economist, there’s no difference between these two policies. Just to be sure, I asked William Gale, director of the Tax Policy Center, just to be sure. “It’s the same,” he shrugged. “The economics of saying you get a credit if you buy insurance and you don’t if you don’t are not different than the economics of saying you pay a penalty if you don’t buy insurance and you don’t if you do.”

Now, various conservative legal minds have argued that there is a profound difference between these two policies: One is penalizing a particular form of economic inactivity, while the other is encouraging a particular form economic activity. And perhaps that’s so. But it’s not a difference very many Americans would notice when it came time to pay their taxes.

Thus, even if the mandate were struck down, it’s actually a very simple  policy fix.  The problem is that due to the anti-tax jihadism of the Republican party, that simple policy fix is an untenable political fix.

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