SCOTUS rules on ACA

Supreme Court – Who’da thunk? Well, I, for one.
On June 28, I was en route to Washington for the NEA Representative Assembly with a busload of northeastern Ohio delegates when my lovely wife Lynn texted the Supreme Court’s decision to uphold Obamacare (I guess it’s all right to call it that now) to me.
When I passed the word along, the bus erupted in cheers, and people flogged their smartphones with demands for information from MSNBC, CNN, The Plain Dealer, and the oddly-silent Fox News.

It was a long and uneventful ride, so I decided to check out the opinion itself. I recommend reading the opinion itself; it’s surprisingly readable.

I didn’t see the TV news coverage myself, but I understand that analysts were initially confused because SCOTUS ruled against the government on one issue and for the government on another. Evidently there was some skirmishing about whether the Court should rule it completely constitutional (since that would be the effect of the ruling as a whole) or completely unconstitutional, since it ruled against the government’s first line of defense, the Constitution’s interstate-commerce clause.

But evidently–and
as a non-lawyer, I certainly did not know this–it is law settled in
1895 that “every reasonable construction must be resorted to, in order
to save a statute from unconstitutionality”; and so the finding that the
law is constitutional on one instead of two grounds is sufficient.

As I understand it,
the Government failed in its attempt to include health care in
interstate commerce because the Constitution’s interstate-commerce
clause allows the government to regulate existing interstate commerce,
but not to simply create a whole class of interstate commerce. This is
the source of Justice Scalia’s comment that if you can force people to
buy health care, you can force them to buy broccoli; and sure enough, the
ruling mentions broccoli. (Gotta love SCOTUS humor!)

But the Court rightly understood that a tax is different from a criminal
penalty, and noted that since everybody agrees that the government has
the authority to use tax policy to incentivize (for example) education
and home ownership (and, I would add, marriage), then using tax policy
to incentivize a health insurance purchase is within the government’s
legitimate authority.

Or, as the Court put it: “Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. . . . Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”

I don’t often have the opportunity to say “I told you so,” but in this
case it appears I can: in fact, I had called it a year previously. On
July 8, 2011, I sent the following in an email exchange with my cousin

“I suspect that the only way to really reform the health care system is a
single-payer plan; but to small-government advocates, such a plan is
anathema.  History will decide whether going for what was achievable
(Obamacare) was the right way to go. . . . Lost in the argument (to the
shame of Democrats, I think) is that a tax isn’t the same as a fine. A
fine implies that a behavior has been criminalized to some degree; a tax
doesn’t. So I would argue that what Obamacare has is incentivized
coverage rather than ‘mandatory coverage.’ And that seems to make sense
to me.

“One of the main things driving up the cost of the health care system for
the rest of us is mandatory indigent care. Assuming we don’t want to see
bodies piling up in emergency room dumpsters, we will continue to pay
for people who can’t pay for their own care and don’t have insurance,
either by choice or necessity.  This constitutes a sort of tax that we
are all paying, and Medicaid is tax-supported as well. Obamacare seems
to let those who can’t or won’t get insurance pay a tax and subsidize
the purchase of insurance for those who will; and in concept, at least,
that seems fair to me.”

In the SCOTUS ruling, Chief Justice Roberts seems to have said the same thing.

Prejudice by Another Name

I recently read Malcolm Gladwell’s book Blink! It reinforced what psychologists have been saying for years: sometimes we aren’t even aware of the reasons for our decisions. Gladwell writes about times when we make decisions literally within the blink of an eye. Evidently, those judgments sometimes turn out to be as accurate as those on which we spend a lot of time. (Or, as my former teaching colleague Jerry says, “When you study long, you study wrong.”)

This article is about what I believe is a form of prejudice. This is an area which I think it’s best to approach with humility: those of us who have our favorites in this Presidential campaign may have made up our minds months or even years ago for reasons we’ll never know. I’m pretty sure that the reasons why I’m supporting a white candidate have nothing to do with her race; but if Gladwell is right, I may never be sure.

It’s tempting to take the position that our true motives are unknowable, so any time spent on knowing them is time wasted; but I think we have an intellectual and moral responsibility to try to understand our motives. And I think that’s especially important for Democrats this year because the sex and race of the candidates are more important in this primary than they have ever been before.

This phenomenon is being called “identity politics.” The Web site quotes the American Heritage Dictionary as defining identity politics as “political attitudes or positions that focus on the concerns of social groups identified mainly on the basis of gender, race, ethnicity, or sexual orientation.” (It’s worth a trip to Wikipedia for more on this phenomenon.)

I must confess to some discomfort when I hear Hillary Clinton’s supporters pointing out how wonderful it would be to elect the first woman to the White House. To me, that was never much of an argument, and I’m equally unimpressed by the equivalent argument being made by Barack Obama’s supporters. Both arguments are appeals to identity politics.

Earlier in the primary when several white male candidates were still running, if supporters had ever suggested voting for one because he is a white male, observers would rightly have condemned the suggestion as racist and sexist. But political leaders and regular citizens alike say openly that they’re supporting Clinton because she’s a woman or that they’re supporting Obama because he’s black. Allegedly that’s identity politics and it’s OK, but to me it’s just prejudice by another name.

I wrote in a previous post that our challenge is to vote for the person we believe will make the best President. We can honorably reach different conclusions about whether that’s Clinton or Obama, but I think we are obliged, to the extent that it’s possible, to make that judgment independent of the sex and race of the candidate.

As someone who is neither black nor female, I hope a final observation will be appropriate. To me at least, it is clear that being a woman has been a far greater burden to Clinton’s campaign than being black has been to Obama’s. I have never heard anyone suggest that Obama’s race makes him unfit for the Presidency, but I have heard plenty of people suggest that Clinton’s sex is an obstacle. If she appears sensitive, she’s weak; if she appears tough, she’s a lesbian. Obama hasn’t had to contend with anything remotely like it. I have a friend who believes that many white voters who tell pollsters that they would vote for a black candidate actually won’t. He may be right, and racism may hide below the surface. But evidently sexism doesn’t have to stay below the surface: it can be indulged in openly and without penalty.

The implication–and it comes as a surprise to me–is that at this point in our journey as a society, sex is a far more potent political force than race.

This historic primary has revealed things about us that we might prefer to have kept secret; but we’re better off for knowing them, and we’ll be better off if we can acknowledge them honestly, openly, and fairly.

We’re Electing a President

I have a lot of friends (and at least one family member) supporting Barack Obama for President. That’s their right, and if the Illinois Senator becomes the Democratic nominee I’ll be happy to support him against either of the Republican candidates.

I went through a period of indecision, but everything became clearer when I realized that my choice was actually pretty simple. The choice we all face is simple and yet profound. Our responsibility is to vote for the person who will make the best President. Period.

  • We can’t vote on the basis of who’s more electable. To do so is to allow our political adversaries to make our decision for us.
  • We can’t be swayed by the chance to be “a part of history.” Any Presidential election makes history, and everyone who votes is part of that history. (I’ll write later about “identity voting,” which I think is simply prejudice dressed in political correctness.)
  • It doesn’t matter which candidate is perceived as more likable. Millions of people thought they liked George Bush more than Al Gore or John Kerry: how’s that working out?
  • Without attention to where it’s heading, why it’s important, and how it’s to be accomplished, “change” is an empty promise.
  • Substance is more important than style. Rhetoric is valuable only when employed to communicate a meaningful message. The best speaker isn’t always the best President.
  • Even the ability to run a good campaign seems to be a poor predictor of success in office. Bush ran a better campaign than Gore or Kerry, but has been a disaster in office.

Most of the people I know who are supporting Obama seem to be doing so for one of the reasons I’ve just listed; I seldom hear anyone suggest that he’s more qualified or that his positions on issues are superior to Clinton’s.

I’ll readily concede that Republicans and independents hate Clinton more than Obama and that he seems sincere and likable, promises “change,” makes great speeches, and has run a fabulous campaign. None of that matters, because on the basis of her experience and the substance of her proposals, Hillary Clinton offers a greater likelihood of success as President.

That means that she deserves–and gets–my vote.