Obamacare: How the Supreme Court could rule unanimously

Many pundits predict  the Supreme Court will decide the Obamacare case  5:4 along partisan lines.  Justices Scalia,  Alito, and Thomas and Chief Justice Roberts,  they assume,  will vote to strike the legislation down,   and justices Breyer,  Ginsburg,  Sotomayor and Kagan will vote to uphold it.  If these predictions are correct,  the outcome will depend on Justice Kennedy,  often considered the “swing” vote between Court conservatives and liberals. 

The guessing is that Justice Kennedy will tip the case to the conservative side.

This is all most unfortunate.  An extremely important decision about public policy is at stake,  and policy decisions are supposed to be made by elected politicians, not by judicial ideologues. 

Still,  policy decisions by elected officials must not exceed the limits posed by the Constitution.  And there are weighty reasons why mandated purchase of insurance could be considered unconstitutional.  

Back in 1954 when the Supreme Court  found segregated public schools to be unconstitutional,  Chief Justice Earl Warren managed to get a unanimous decision of this highly contentious case.  It is generally thought that this unanimity helped gain eventual public acceptance of the decision in Brown v. Board of Education.  . 

A unanimous decision by the nine justices,  avoiding the appearance of partisanship, would be equally desirable in the current case. A unanimous decision to uphold Obamacare is unlikely.  But a unanimous decision to declare it unconstitutional is not impossible and could be the best possible outcome both from the legal and the policy point of view.  .

The Administration argues that mandated purchase of insurance is essential if everyone is to be insured.  But a unanimous Court could rely on reasoning supplied by an amicus curia brief submitted to the Court on behalf of 50 medical doctors (and other people) who support a single-payer insurance system.   The doctors’ basic argument is that the mandate to buy insurance cannot be justified as the only way to skin the cat, since an alternative exists.  They point out that a  single payer system supported by taxes is clearly constitutional,  exists in a number of countries,  and already exists in the U.S. for people over 65. 

Such reasoning could unite all members of the Court, would  rest on strong constitutional logic and precedent,  and would  help to focus future policy discussions by elected leaders.  And from comments made during oral argument, at least one justice (interestingly,  Kennedy) was familiar with the doctors’ argument.  As the Court’s principal swing voter,   Kennedy  would be in a strong position to lead the Court to a unanimous decision along these lines if he is so inclined.

Such a decision would give everyone something to be happy about.  Conservatives would be happy that the Court avoided setting the dangerous precedent that people can be compelled to buy goods or services.  Liberals could take satisfaction that the Court had drawn favorable attention to  a single-payer system paid for by taxes, their preferred solution all along,  and perhaps helped make such a system politically possible in the near future.    

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This piece has run in the Daily Telegram,  Adrian, Michigan,  and on CommonDreams.org .

Repudiate "Obamacare"? Here is a radical strategy for Obama

No matter how the Supreme Court decides the medical insurance cases, we face prolonged uncertainty. If it upholds the law, Republicans will sabotage implementation and promise to repeal it when they return to power. If it strikes down the law, the uncertainty will be what, if anything, Congress will do next. Confusion will be even greater if the Court only strikes down parts of the law.

The only way to avoid crippling uncertainty will be to stop the Supreme Court from making any decision at all. President Obama could do this by announcing that he is now convinced—after considering the arguments at the Court---that the 2700 page law is unconstitutional. He would add that he has also concluded the law is unwise: too complex, precarious in its financing, too many provisions added merely to gain votes needed for passage. He can say we must do better than this and ask Congress to repeal the entire mess, depriving the Supreme Court of any opportunity to make a further mess. Congress would undoubtedly comply with this request.

Obama would explain that the obvious solution to our insurance problems would be a single-payer system (“Medicare for all”) financed by taxes, which would clearly be constitutional. Unfortunately he had to rule this out during his first term because he had promised not to raise taxes on anybody but the rich. He would apologize for making a promise that prevented him from doing what he thought best for the country.

Obama would announce that his re-election campaign will focus on showing voters why a single payer system is the best idea, noting that his promise not to raise taxes was only for his current term. He will note that elimination of insurance premiums (now paid directly or indirectly by employees) will make up for the tax increases required by a single payer system. In fact the average person will come out ahead since money now paying for insurance company management will be greatly reduced.

The President’s principal goal would be to convince conservatives and Republican voters, since most Democrats and liberals would already agree. He should stress the simplicity and efficiency of single payer systems and the experience of foreign countries with such systems. He should ask conservatives to consider whether, even if they feel secure with their present insurance, they can be sure that they won’t lose their jobs (and hence their insurance), and whether they can be sure that their children and grandchildren will be equally fortunate.

To guarantee enactment of single payer, Obama would ask voters—including Republicans--- to elect overwhelming Democratic majorities to Congress, “just this once.” If he can convince enough people, single payer could be implemented and not be reversed later on. Republican politicians, if they see overwhelming voter support for single payer, will get religion in a hurry. (Remember George “segregation forever” Wallace, who hastily abandoned this idea after the Voting Rights Act of 1965 brought large numbers of black voters to the polls.)

If he fails to convince enough people, Obama will lose the election. But he will be remembered as a great president who did his best to lead Americans in a direction he honestly thought desirable and was not afraid to admit making mistakes. And he will have helped educate public opinion so that a single payer system could become politically possible in the future.

Does President Obama have the imagination and courage to repudiate Obamacare? We will see.

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This piece has run in the Daily Telegram (Adrian, Michigan) and on CommonDreams.

Scrap "natural born citizenship" requirement for presidents

Americans often assume the Constitution is perfect. Our founders, however, made no such assumption and therefore made provisions for amending it.

One of the most mischievous clauses in the Constitution is section 1 of article 2:

“No person except a natural born citizen . . . shall be eligible to the office of president . . . .”

Several presidents and major presidential contenders have been accused of violating this requirement: President Chester Arthur, Charles Evans Hughes (later appointed Chief Justice) , Barry Goldwater, George Romney (Mitt Romney’s father) , and most recently John McCain and President Barack Obama.

Though it disqualified various prominent individuals (including Henry Kissinger and Arnold Schwarzenegger), in earlier decades few people took this clause seriously. Kissinger, asked if he was unhappy to be ineligible to become president, joked that there was nothing in the Constitution that would prevent him from becoming emperor. His ineligibility may have made him a more effective secretary of state, since people interested in becoming president themselves did not have to undermine him in order to enhance their own chances.

Some wits wondered if people delivered by Caesarian section were eligible.

Today, however, “birthers” and conspiracy theory devotees have made this requirement a major distraction from serious issues of public policy and from the actual strengths and weaknesses of presidential candidates. The requirement also conflicts with the widely shared value of equality before the law by establishing two classes of citizens, those eligible to be president and those not eligible.

Of course there are other constitutional requirements to be president, most notably the age requirement. But this requirement has minimal practical impact since few people younger than 35 are likely to be serious contenders.

Foreign-born individuals who are naturalized citizens might even be more qualified than the average natural born citizen. After all, they have been certified by the naturalization process to have actual knowledge about the American political system. Some recent candidates for president and vice president seemed to have some gaps in this regard.

There is an interesting contrast in the Constitution between the eligibility rules for the presidency and the total absence of any rules for Supreme Court members. For Supreme Court justices there is no age requirement, no requirement that they be lawyers, and no citizenship requirement. Mikhael Gorbachev would be a perfectly constitutional justice, as would a 14 year old like Malia Obama.

Our founders apparently trusted presidents and the senators who confirm judicial appointments to do the right thing. Is there any reason to think we cannot equally trust American voters when they select a president?

It is high time to get going on the necessary amendment. If we start soon, it could be ratified before Barack Obama, if re-elected, completes a second term. Eric Sevareid once compared being president with treading water while swatting bees. This amendment will remove a few bees from the bonnets of conspiracy theorists and reduce the number of bees distracting future presidents from getting their job done.

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This article has appeared in the (Adrian, Michigan) Daily Telegram and in the (Portland) Oregonian.

Steven Pinker: The Better Angels of Our Nature: Why Violence has Declined

This is an outstanding book, so much so that I’ll probably buy a copy as soon as the paperback version comes out. Since I am a Certified Public Cheapskate, and already having trouble finding bookshelf space, this is high praise! I cannot remember ever buying a book after reading a library copy, except when our book discussion group later decided to use it.

Pinker correctly says that this analysis is “unsentimental history” based on “statistical literacy.”

A great strength of this work is Pinker’s extensive and persuasive documentation of how violent and nasty life in previous centuries was. The massive torture of people and animals in the past, which Pinker does not shrink from describing in gory detail, is sobering and depressing, but very educational.

Pinker admits that we are far from having arrived at utopia. But a number of graphs illustrate how the chances of being murdered or raped over the long haul have been greatly reduced from one century to another, and even the likelihood (expressed as a percentage of the current populations) of being killed in wars has gone way down.

The author capably explores a number of possible explanations for the improvements, accepting some and rejecting others.

Although Pinker’s thesis is very upbeat, he pointedly refrains from arguing that the trends toward improvement he documents will inevitably continue. He says our appropriate attitude should be “gratitude” rather than “optimism.”

This book would make a wonderful basis for reading and discussion in college political science classes, and its 700 pages (before footnotes kick in) would probably mean it would have to be the main text for a one-semester undergraduate class.

Phony Prices Give Corporations a Bad Name

The scandal about outrageous prices ($51 for two minutes!) paid by soldiers phoning the U.S. from a German airport is merely one more example of a more general problem: the proliferation of misleading prices advertised by businesses, or, as in this case, the absence of any announced price at all.

Years ago I was faculty advisor to a fraternity some of whose members cut down and stole a valuable blue spruce to use as a Christmas tree. They got caught. The tree’s owner said it was worth $600 and the guilty brethren coughed up this money to avoid being prosecuted . Buying a tree would have been cheaper.

Afterwards, I pointed out that one advantage of buying things is that you learn the value placed on them by their owners and, if you find that price excessive, you don’t buy. But this advice is worthless if the seller states a false price, or no price.

It is easy to find examples of false prices or no prices. At restaurants, for example, the waiter may announce specials of the day without informing diners of the prices, hoping that some diners will order without asking the price in order to avoid looking like cheapskates to others in their party.

On a grander scale, we find adjustable rate mortgages with low initial interest charges which always seem to go up, sometimes way up, after a year or two. Some of the recent housing meltdown was aggravated by interest increases that homeowners could not afford to pay.

Then there are hotels and car rental agencies which advertise rates without bothering to state the taxes which will be collected on top of these rates, taxes which are often substantial percentages of the advertised prices. Of course the customers are often from out of state and in no position to know what the state and local taxes are in the city in question. This is on top of the unannounced “fees” some even more unscrupulous hotels have been adding to their bills lately.

And how about TV cable or internet service providers offering bargain prices “for 6 months?” Or phone companies whose prices don’t include “taxes and fees?” Or TV commercials offering things for so many dollars “plus postage and handling.” Customers might be able to estimate postage costs, but “handling” is another matter, and sometimes exceeds the advertised price of the goods.

I won’t even comment on advertised airline fares or credit card interest rates!

Most of these practices are currently legal, but that does not make them right. One wonders if business executives are so obsessed with maximizing profits that they don’t care if they are giving their organizations a bad name. They obviously are not living by the Golden Rule.

It would be interesting to see if these problems could be ended by simple legislation without a lot of complications and loopholes requiring prices to be stated before any business transaction can occur, and requiring that all such prices be honest, “bottom-line” prices.

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This article has appeared in the (Portland, Oregon) Oregonian, and the (Adrian, Michigan) Daily Telegram.

Excellent article on the need to transport energy

The New York Times just published an excellent analysis about the conflict between our need to move large amounts of energy from where it can be found to where it will be used----whether it be electricity, oil, or natural gas---and obstruction by environmentalists and NIMBYites of efforts to build transmission lines and pipelines. Read it here.

This letter was NOT published by the Wall Street Journal

My previous entry (below) about a letter published by the Wall Street Journal has a story behind it. The same day the WSJ ran the op-ed (one of many recently) encouraging us to attack Iran it also ran a piece about the fight between the Obama administration and religious groups about the Administration's decision (since weakened) to require hospitals and universities run by religious groups to provide "free" contraceptives as part of any insurance coverage provided to employees.

I had to pick which article to comment on, since I knew full well the WSJ would not publish two letters from me at the same time. I picked the birth control issue, sent off a letter, and the very next day the WSJ published a lengthy op-ed piece making exactly the same points I had made in the letter!

So obviously they would not use my birth control letter. I thereupon wrote the letter on Iran which they have indeed published.

In order to avoid totally wasted effort in writing the first letter, here it is.

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In “Obama Seeks Deal on Birth Control” [WSJ, Feb. 8, p. A5], a Hawaiian model

is suggested as a possible compromise: Religious employers could enroll workers in a plan not covering contraceptives, but a reduced premium for the plan (presumably passed along to the employees in their paychecks) would allow “employees who want contraception to pay for the coverage out of their own pockets directly to the insurer.”

It would make more sense for employees wanting contraceptives to just pay for them themselves, eliminating the overhead associated with all money passing through insurance companies. Since only people intending to use contraception would pay for the extra insurance coverage, the additional premium would have to be more than they would pay for the contraceptives.

A critic of any concessions by the Administration is quoted to the effect that “If people can opt out of [paying for] specific services, the whole idea of of insurance falls apart.” Actually, the idea of insurance has already fallen apart when insurance is allowed, let alone required, to cover something like birth control that is a normal operating expense (like food and clothing) rather than an unusual but financially catastrophic expense (like your house burning down or major surgery requiring lengthy hospitalization).

Much of what passes for medical insurance today is actually prepaid expenses and makes sense only because it allows people to avoid paying income tax on substantial parts of their earnings.

Paul deLespinasse

Corvallis, Oregon