The Affordable Care Act Running Up Against Federalism

In late 2010, Republicans were quick to declare that "ObamaCare was already on life-support in the wake of federal district court Judge Henry E. Hudson's ruling in Virginia that the Affordable Care Act’s (ACA) requirement to buy health insurance is unconstitutional. But in truth Virginia’s attorney general, Ken Cuccinelli, won only a partial victory. He sought to have the entire law overturned, but instead only the section creating an individual mandate was. This is perplexing to me, as the law contains a clause indicating that if any part is deemed to be unconstitutional, the entire act would fall. Clearly, the health insurance industry didn't want to be forced to pay out without being guaranteed the expanded customer base by the U.S. Government.  

According to Newsweek, "Judge Hudson was very explicit in his ruling that only the mandate that individuals have coverage and 'directly-dependent provisions which make specific reference' to it will be affected. Technically, this means virtually nothing but the mandate is eliminated. But as a practical matter, the requirements placed on insurance companies to make coverage more generous and available to everyone are economically dependent on the mandate. To keep the rest of the bill in place without the mandate would provoke the wrath of the insurance companies’ powerful lobby and set premiums on an upward-spiraling trajectory. On the upside, Medicaid would still be expanded so the millions of poor who are without health insurance will be insured."[1]  In my comparably small and insignificant view, this is the major significance in the entire law.

To Europeans much more so than Americans, generally speaking, healthcare is viewed as a right even for the poor as a matter of human rights. Lest the rich poo poo this right because theirs is secure, I can only shake my head in utter disgust; in a civilized society, even a person incapable of working has the right to survive. Not wanting to pay for this right when one enjoys other advantages of living in a society (e.g., police protecting one's property) is sheer selfishness.  I take the right to survival to be the kernel worth saving in Obamacare even if scrooges poo poo's the plight of their less fortunate fellow citizens while ignoring their own self-centeredness. Hudson also declined to prevent the law’s implementation while the courts sort out the constitutional question. The ACA has been upheld as constitutional by two district courts. According to Newsweek, "Hudson’s decision actually guarantees only one thing: that the constitutionality of the individual mandate will ultimately be decided by the Supreme Court. Legal experts are unclear which way the high court will go

The question of whether the mandate is constitutional hinges on whether it falls within the federal government's enumerated power to regulate commerce. In particular, the question is whether inactivity can be regulated. Failure to buy insurance is inactivity.  Is a decision to buy or not to buy to be counted as an activity?  Or is requiring Americans to carry health insurance a way of regulating how they pay for something that every American will use (i.e., health-care)?  It seems to me that this question has been overly simplied, whereas the past "logic" used by the U.S. Supreme Court to ok expansions in the commerce clause is notoriously invalid even as it has been generally accepted in American society.

Historically, the U.S. Supreme Court has not resisted ever deepening and broadening encroachments by the national legislature and executive on the States by means of the enumerated power of regulating interstate commerce.  In 1942, for example, the court held in Wickard v. Filburn—the most relevant precedent for this case—that a farmer growing wheat for his own chickens, above a maximum of growth allowed per acre at the time, was subject to federal regulation under the commerce clause because the resulting extent to which a farmer does not buy wheat to feed his chickens on the market affects the national market price of wheat. "This goes a step further than Wickard because it’s the omission of action that’s being defined as the interstate act," says Jonathan Turley, a constitutional law instructor at George Washington University. Critics of the mandate say that if you start defining choices not to buy things as actions that affect interstate commerce then there is no limit on what Congress can make you buy. In my view, the action/inaction distinction is not vital to whether the power of the U.S. Government is potentially unlimited under the commerce clause; <em>Wickard </em>itself evinces the potential unlimitedness in the power; even growing wheat for one's own use can be deemed as interstate commerce even though the wheat never even crosses the road.  It is the tenuous multiple links of inference that dwarfs even the action/inaction distinction. The legalese in the inferences has already supported Congress in using the interstate commerce clause to reach a variety of objects (Morrison and Lopez being the two exceptions, but even they allow for indirect effects to the commerce). As another example involving what one grows and consumes on one's property, in 2005 in Gonzales, the court held that the commerce clause entitles the federal government to outlaw California residents from growing marijuana for personal medicinal use. Of course, the government's purpose here was not to regulate commerce; the policy was against illegal drugs being used. This is precisely how the commerce clause can be stretched to cover virtually anything.

If the court throws out the health mandate, it might be just as well as the State governments really should be the ones to address health-care for the uninsured, given our system of federalism. If the mandate is declared to be unconstitutional, I would advise the justices to do it in a way that also exterpates the inferences of legalese that have for more than one hundred years enabled the federal government to encroach on the States--effectively ending the check on government that is afforded by federalism. In other words, the court could use the case as a means of setting definitive limits on the enumerated powers.  Otherwise, Congress will return to the clause for yet another encroachment using linkages--simply sidestepping regulating inaction. The case can occasion a wake-up call concerning the consolidation of governmental power at the center at the expense of the innate diversity that exists in an empire-scale polity. I doubt very much that the court will sound the alarm--seeing the forest through the trees--even if the mandate is declared to be unconstitutional. We simply are not good at looking at things in terms of the big picture; it is no accident that most members of Congress are lawyers.

1. Ben Adler, "Will the Supreme Court Rule on Health-care Reform?" Newsweek, December 15, 2010.

Military Sacred Cows: A Matter of Contrived Camulflage

"The most significant threat to our national security is our debt."

Micheal Mullen, Jount Chiefs of Staff Chairman, August, 2010.

The defense budget in 2010--$664 billion (not counting the Iraq and Afghanistan wars)--equalled that of the rest of the world combined.  One dollar of every five spent by the U.S. Government was for defense. The amount spent represents 80% growth since 2000. Why?  One reason: the big weapon systems oriented to fighting other empires (e.g., Russia and China). For example, $600 million for the littoral combat ship and $13 billion for amphibious landing vehicles (whose purpose has even been questioned by Sec. of Defense William Gates).  It would seem that the military contractors--the military industrial complex, moreover--are firmly entrenched and in control. That is to say, the defense spending is indicative of the influence of big business over government in the United States.  That this influence goes unhampered may tell us something about the leanings of our societal norms.

The House Republicans' "Pledge to America" formulated in 2010 promises to exempt the military from any cost-cutting that might be entailed in reducing deficit spending. Even so, Sen. Tom Coburn wrote, "Taking defense spending off the table is indefensible. We need to protect our nation, not the Pentagon's sacred cows."  This statement is significant because it gets at the problem of the debt and the influence of big business in government.  That is to say, it kills two birds with one stone.  Indeed, these two birds may well be the achilles heel of the United States as a viable entity or going concern.  The fatal flaw may well be within, rather than from an external threat.  This is the meaning of Micheal Mullen's statement above. To be sure, Republicans believe that defense is government's core function. Along with regulating interstate commerce, this is particularly true of the federal government.  It is less true, I would argue, of the state governments.  So the plank can be viewed as primarily federalist rather than in terms of limited government itself.  The probably-unfixable $14 tillion US Government debt and the consolidation of public governance in the U.S. into the federal government at the expense of federalism (and the checks therein) are related; both are indications of a basic inbalance that is unsustainable. In the face of this state of affairs, it is telling that the question in late 2010 was who should continue to get a tax.

Source: Michael Crowley, "The Sacred Cows," Time, December 13, 2010, pp. 55-58.

Obama Caving to Plutocracy

I contend that Obama caved on his campaign pledge (or promise) not to extend the bush tax cuts for the rich.  The added growth expected in 2011 from ALL of the cuts is just a half of a percent of GNP growth.  I have read that the rich save their tax cuts rather than use them in ways that stimuate the economy.  As for savings, banks have enough capital to lend (this isn't why they are still skittish in 2010).  That the vacuous argument that tax cuts for the rich will somehow create lots of jobs and save the economy from another recession has had any weight or credance really discourages me about American political discourse.  That Obama didn't "just say no" is also discouraging. 

On December 14, 2010, Pat O'Reilly said on his Foxs News show that the "far left" is in retreat because Ameriicans have rejected it.  He said even Obama has rejected the left. I think the left has vanquished itself.  Perhaps it could be said that the left is willingly impotent. Where is Al Gore?  Ralph Nadar?  Micheal Moore?  silence.  Only the sound of Obama caving. He should have refused to sign a tax cut continuation for the rich and said the Repubs could refuse to extend the cut for lower and middle income people--it would be the Repubs provoking the resumption of higher taxes for everyone rather than just on those who can afford them.  We need a Teddy Roosevelt or an Andrew Jackson. Teddy stood up to Standard Oil, and Jackson stood up to the Second Bank of the United States.

By contrast, Obama has operated largely in line with Wall Street (e.g., the bailout for the banks rather than foreclosed homeowners) and the health insurance industry (e.g. not even a public option, which was odious to the industry).  Barak Obama does not want to displease the powers that be; I suspect reelection has a lot to do with this state of affairs.  This raises the question: is there a counter in American politics to plutocracy?