Several conservative justices may honestly have been looking at arguments that would enable the Affordable Care Act to be justified under the Commerce Clause without expanding the use of that clause beyond what they'd like to see.
One such argument, advanced in some of the lower court briefs, is that regulation of health care is an activity that only the Federal Government can do effectively. This is because any state unilaterally making health care more easily available to its residents, especially as a subsidized part of welfare, will pay a penalty in the form of an influx of needy people. The only way to avoid this is by an inter-state regulation uniformizing these benefits among the states -- exactly as the ACA does; and, the only government entity capable of doing this regulation is, of course, the federal government. That's why healthcare should be federally regulated but not broccoli consumption.
This argument is fleshed out somewhat in a New Republic article, brought to my attention by MB.
Friday, March 30, 2012
The crux of the Trayvon Martin case
Reader AB writes, quite correctly in my opinion:
"In my mind you can take race and victim’s history and attacker’s history out of the equation and it boils down simply to this. Florida’s shoot first/ask questions later law allowed this travesty to happen.
The precedent set by this case is that I can stalk someone under the broad guise that he is “suspicious”, initiate a confrontation, and kill him, and the onus is on him (now deceased) to prove that I was doing anything other than acting in self defense. If I’m mad at my boyfriend, I can invite him over, tell authorities he was stalking me, shoot and kill him and get away with it. If I’m jealous of my boyfriend’s girlfriend, I can do the same. I can use that excuse for a racially motivated attack or homophobic attack or an love triangle attack – an anti-Christian, anti-Athiest, anti-Muslim or anti-Jewish attack. Had Zimmerman been arrested after shooting Martin, this uproar would have at least been somewhat muted. However, Florida’s idiotically vague law had to be followed, meaning there was no evidence to prove that Zimmerman wasn’t acting in some broadly defined form of self-defense.
I agree there are racist components at play here. Had Martin shot Zimmerman, I doubt the outcome would have been the same even he attempted to invoke the same privileges under the law. But that’s speculation and I think distracts from the crux of the problem here. I am absolutely outraged by this case, but I don’t like how politicized it has become. It really doesn’t matter whether or not Trayvon Martin was black or white, an honor’s student or a juvenile delinquint. No one should have the right to approach an innocent, unarmed person, initiate a confrontation and then murder them. “Suspicious” activity should be reported to the police. The one indisputable fact here is that Florida’s law puts us all in danger as it gives any killer a perfect alibi."
The scary thing is that several other states beside Florida have "Stand Your Ground" laws, and several dozen others are considering them -- with, you guessed it, strong NRA support. The impetus for these laws was to extend to public areas the widely-accepted Castle Doctrine, which asserts that one can use deadly force to defend your home from an invader, and are not required to attempt retreat first.
I believe that several kinds of people push for these laws. First, there are those who mistakenly believe that personal violent assault on public streets is a statistically legitimate fear. In any case, existing law provides for self-defense if one is threatened with personal violence. No one is presumed to be strong enough to ward off, bare-handed, a severe physical assault, and people are almost never arrested if they kill an assailant in a public place and can provide evidence that they were subjected to life-threatening force.
The second kind of people pushing for these laws are serious "romantic" vigilantes -- people who have watched too many Charles Bronson movies or played too many video games, and see themselves as courageous champions and saviors of the innocent.
Third are people who actually look forward to killing -- as a thrill or adventure. Although many NRA members are of the vigilante type, I think that many of them also belong to this sadistic group, and are very anxious to get some use from their guns that is not tame target-practice. Violent racists and homophobes are significant elements of this collection.
Unfortunately, state legislators -- especially in redneck states -- are prone to pass Stand Your Ground statutes because they don't understand the consequences of what they've enacted. Let's hope that the terrible killing in Florida leads to the elimination of "right to kill" legislation.
Thursday, March 29, 2012
ObamaCare and the Broccoli Mandate
Almost none of the commentators on the recent Supreme Court hearings devoted to "ObamaCare" (the "Patient Protection and Affordable Care Act", which I'll refer to as ACA) dare to question whether the 4 out-and-out "conservative" justices have any intention of actually fairly evaluating the issues in the light of logic or precedent. Perhaps the commentators are uneasy about outright criticism of the Court, or are worried that they may be held accountable for predictions as to the outcome (to be announced in a few months). One of the few sources that have criticized the Court on these grounds is Talking Points Memo, which recently noted that Justice Scalia's questions and remarks have exactly echoed Republican talking points about healthcare; another is Scot Lehigh, writing in the Boston Globe.
Recent pivotal cases seem to suggest that the conservative justices, whoever they may be, put their personal politics, not law or reason, first in their decisions. In Bush v. Gore, for example, justices Scalia, Rehnquist and Thomas reversed nearly all of their previous interpretations of "states' rights" and the "Equal Protection" clause in over-ruling the Florida Supreme Court. In the recent "Citizens United" case the thin conservative majority created new law and over-ruled previous precedents in claiming free-speech rights for corporations, rights that they had been rather stingy in granting to actual people. At least one of the justices, Clarence Thomas, almost never asks a question, and seems to have been clearly and predictably guided throughout his career on the bench by an internal ideology, inflexibly reactionary.
(This is not to say that liberal justices aren't predisposed to vote their biases, it's just that the conservatives are far more "activist" -- willing to overthrow established legal precedent -- and the conservative philosophy is so much more predictable and simple-minded.)
Let's take a look at the quality of the conservative questioning so far in what is officially called Florida v. Department of Health & Human Services.
First, Justice Kennedy asked administration lawyer: "Can you create commerce in order to regulate it?" and further asked him to state "some limits on the Commerce Clause."
This is disingenuous and an obvious attempt to get Solicitor General Verrilli to overstep. ACA does not create the commerce in health insurance. A large majority of Americans have some form of health insurance, and a majority of the others would buy it if they could. ACA no more creates a market for insurance than the Patriot Act creates a need for security measures against terrorism, or Medicare creates a need for healthcare for senior citizens. Furthermore, even if one were to concede that ACA creates commerce by forcing people to have healthcare insurance, that would certainly be entirely reasonable in the case of insurance, where the whole point is to protect large numbers of people at controllable cost through the central idea of insurance: spreading the risk. If only sick people bought insurance, the rates they would have to pay would be prohibitive. Invoking the Preamble to the Constitution, to "promote the general welfare" by instituting universal healthcare, the Congress would have to have either a totally government-run system, or else enforce an individual mandate as provided by ACA.
Belying his reputation as a deep thinker, Justice Scalia later stated: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.”
The naivete and childishness of the remark is astonishing. Yes, the market is food, so we could demand that people buy food: that is the correct analogy. Would anyone make a test case against forcing people to buy food (or grow it)? This is indeed an individual mandate that seems entirely harmless because we rarely think about it. If you can't afford this individual mandate, then the government provides food stamps. Any problem with that? If you refuse both, then you can either starve yourself and your family or steal -- both of which are strongly discouraged by law.
So what about broccoli? There would be no logic in the government demanding you buy broccoli since the issue is starvation, and broccoli alone won't prevent that. No government would ever require a particular food or foods any more than it would require that you buy a particular brand of health insurance. The government does regulate the food that is available, and does provide guidelines for healthy eating. If you choose to starve yourself, then you'll either die in seclusion, or you'll be taken to a hospital and (force) fed nutrients to save your life. The costs of such a treatment, of course, will be picked up by others. People who make a habit of doing this are not generally considered hearty independents, but rather loonies or social parasites.
So what about healthcare? Like food, everyone needs it sooner or later, but this need is distributed statistically. It can be rationed by insurance companies -- they may not cover pre-existing conditions, for example, or certain procedures or certain high-risk people. It can be rationed by expense/income. However, for all classes of people except the very young and healthy, it is least expensive when the pool of people covered is very large. So, those who can afford but refuse to buy insurance are, in the same sense as those who refuse to buy food, social parasites: they raise the costs for everyone else, and they occasionally must be underwritten by others. This is the correct analogy, not the infantile one of a government forcing us to eat broccoli.
Of course Justice Scalia may have meant broccoli to stand for "healthy foods" or a healthy lifestyle, and is worried that the government might be using the Commerce Clause as a way of setting our menus for us -- sort of a Commerce Clause "domino theory": Eating healthy food is good for you, hence lowers the cost of healthcare for all, hence the next step is to force everyone to eat broccoli under the guise of regulating interstate commerce. I wonder whether Scalia ever worried about the implications of asserting that corporations are people and thus have the same rights as people. Should they vote? Hold office? (They clearly have all sorts of sexual rights: they've been doing nasty stuff to us for decades.) Talk about inventing constitutional law.
Just a few weeks ago most legal experts felt that it was clear that the individual mandate was constitutional, and that even Scalia might end up voting that way. So now, let me be among the first to predict: The conservatives will once again vote their ideology to overturn all sorts of legal precedent and declare the individual mandate unconstitutional.
Recent pivotal cases seem to suggest that the conservative justices, whoever they may be, put their personal politics, not law or reason, first in their decisions. In Bush v. Gore, for example, justices Scalia, Rehnquist and Thomas reversed nearly all of their previous interpretations of "states' rights" and the "Equal Protection" clause in over-ruling the Florida Supreme Court. In the recent "Citizens United" case the thin conservative majority created new law and over-ruled previous precedents in claiming free-speech rights for corporations, rights that they had been rather stingy in granting to actual people. At least one of the justices, Clarence Thomas, almost never asks a question, and seems to have been clearly and predictably guided throughout his career on the bench by an internal ideology, inflexibly reactionary.
(This is not to say that liberal justices aren't predisposed to vote their biases, it's just that the conservatives are far more "activist" -- willing to overthrow established legal precedent -- and the conservative philosophy is so much more predictable and simple-minded.)
Let's take a look at the quality of the conservative questioning so far in what is officially called Florida v. Department of Health & Human Services.
First, Justice Kennedy asked administration lawyer: "Can you create commerce in order to regulate it?" and further asked him to state "some limits on the Commerce Clause."
This is disingenuous and an obvious attempt to get Solicitor General Verrilli to overstep. ACA does not create the commerce in health insurance. A large majority of Americans have some form of health insurance, and a majority of the others would buy it if they could. ACA no more creates a market for insurance than the Patriot Act creates a need for security measures against terrorism, or Medicare creates a need for healthcare for senior citizens. Furthermore, even if one were to concede that ACA creates commerce by forcing people to have healthcare insurance, that would certainly be entirely reasonable in the case of insurance, where the whole point is to protect large numbers of people at controllable cost through the central idea of insurance: spreading the risk. If only sick people bought insurance, the rates they would have to pay would be prohibitive. Invoking the Preamble to the Constitution, to "promote the general welfare" by instituting universal healthcare, the Congress would have to have either a totally government-run system, or else enforce an individual mandate as provided by ACA.
Belying his reputation as a deep thinker, Justice Scalia later stated: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.”
The naivete and childishness of the remark is astonishing. Yes, the market is food, so we could demand that people buy food: that is the correct analogy. Would anyone make a test case against forcing people to buy food (or grow it)? This is indeed an individual mandate that seems entirely harmless because we rarely think about it. If you can't afford this individual mandate, then the government provides food stamps. Any problem with that? If you refuse both, then you can either starve yourself and your family or steal -- both of which are strongly discouraged by law.
So what about broccoli? There would be no logic in the government demanding you buy broccoli since the issue is starvation, and broccoli alone won't prevent that. No government would ever require a particular food or foods any more than it would require that you buy a particular brand of health insurance. The government does regulate the food that is available, and does provide guidelines for healthy eating. If you choose to starve yourself, then you'll either die in seclusion, or you'll be taken to a hospital and (force) fed nutrients to save your life. The costs of such a treatment, of course, will be picked up by others. People who make a habit of doing this are not generally considered hearty independents, but rather loonies or social parasites.
So what about healthcare? Like food, everyone needs it sooner or later, but this need is distributed statistically. It can be rationed by insurance companies -- they may not cover pre-existing conditions, for example, or certain procedures or certain high-risk people. It can be rationed by expense/income. However, for all classes of people except the very young and healthy, it is least expensive when the pool of people covered is very large. So, those who can afford but refuse to buy insurance are, in the same sense as those who refuse to buy food, social parasites: they raise the costs for everyone else, and they occasionally must be underwritten by others. This is the correct analogy, not the infantile one of a government forcing us to eat broccoli.
Of course Justice Scalia may have meant broccoli to stand for "healthy foods" or a healthy lifestyle, and is worried that the government might be using the Commerce Clause as a way of setting our menus for us -- sort of a Commerce Clause "domino theory": Eating healthy food is good for you, hence lowers the cost of healthcare for all, hence the next step is to force everyone to eat broccoli under the guise of regulating interstate commerce. I wonder whether Scalia ever worried about the implications of asserting that corporations are people and thus have the same rights as people. Should they vote? Hold office? (They clearly have all sorts of sexual rights: they've been doing nasty stuff to us for decades.) Talk about inventing constitutional law.
Just a few weeks ago most legal experts felt that it was clear that the individual mandate was constitutional, and that even Scalia might end up voting that way. So now, let me be among the first to predict: The conservatives will once again vote their ideology to overturn all sorts of legal precedent and declare the individual mandate unconstitutional.
Wednesday, March 21, 2012
Mass MoCA
We just paid our annual visit to Mass MoCA (Massachusetts Museum of Contemporary Art). They have a lot of interesting art on exhibit. One of the best is a series of works collectively entitled "The Workers" ; this comprises many still images as well as several very powerful films about local organizing to combat corporate attacks (environmental and other) on communities in L.A. and in Mexico.
The exhibit is at Mass MoCA until April, and is worth seeing. North Adams is a beautiful drive from the Boston Area, and not too bad from NY. We were fortunate to have 75+ degree weather as well. The museum and the town both deserve more support.
The exhibit is at Mass MoCA until April, and is worth seeing. North Adams is a beautiful drive from the Boston Area, and not too bad from NY. We were fortunate to have 75+ degree weather as well. The museum and the town both deserve more support.
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