A Light Passes

September 20, 2020

by Steve Stofka

Have we had enough yet? Almost 200,000 Americans have died from Covid, millions of Americans are out of jobs, hundreds of thousands of small family businesses have closed, millions of families are about to lose their homes, thousands of acres in western lands on fire, thousands more left homeless by Hurricane Sally and now Justice Ruth Bader Ginsburg has died. The nation wishes her two children and four grandchildren their condolences for her passing. At least half of the nation grieves for the political battle that is to come.

The day before Justice Ginsburg died, the National Constitution Center awarded her the 2020 Liberty Medal. Jeffrey Rosen, the host, spoke with two lawyers who have argued cases before the court and clerked for RBG. https://constitutioncenter.org/debate/podcasts

She was a pioneer in legal justice for human beings, regardless of the roles that society assigned them based on their sex. She helped to steer the Supreme Court to prejudicial practices against women by first encouraging her male colleagues to review practices that put men at a disadvantage.

She often wrote the opinion for the liberal justices on the court but had the respect of one of the court’s most conservative justices, the late Justice Antonin Scalia. Her reasoning was sound; her principles were consistent; her loyalty to fair treatment under the law steered her through many an argument to a clear conclusion.

I have no doubt that the conservative Federalist Society already has a waiting list of Supreme Court replacements for Senate Majority Leader Mitch McConnell and President Trump to consider. Will they delay this appointment in the hopes that it will bring out more Republican voters? If Trump loses the election, McConnell can bring the appointment of a new Justice before the Senate in December or January. If Republicans lose the majority in the Senate, he will have to make the appointment in December because the new Senators take their seats on January 3rd, 2021.

As I write this on Friday night, McConnell has just announced that he will seek a quick nomination. The gloves are off. It’s about to get bloody. In further updates, Republican Senators Susan Collins and Mitt Romney have said that they don’t think a nomination is appropriate just before an election. Whether McConnell has enough votes to proceed with the nomination, some Republican Senators may want the vote anyway to show their allegiance to Trump just before the election.

///////////////////////////

Photo by Juskteez Vu on Unsplash

Revival

March 8, 2020

by Steve Stofka

A heartfelt endorsement by veteran S. Carolina Congressman Jim Clyburn ignited a outpouring of voter support for Joe Biden in that state’s primary a week ago. Mr. Biden rode that momentum into Super Tuesday a few days later and the campaign that was on life support became the leading candidate in the Democratic race.

The following day the stock market rallied a whopping 4%. Big investors know that Mr. Biden will not make life difficult for them. He is old school. He knows that there are two sets of rules and the rich write the rules. Mr. Sanders makes Wall St. uncomfortable because he also knows that there are two sets of rules. He wants to write a new rule book where the rich don’t write the rules. That’s bad for rich people. Here’s why.

Bernie Sanders is often branded as a socialist. He brands himself with the qualifier Democratic Socialist. As the Wall St. Journal’s Richard Rubin pointed out this week, Mr. Sanders is not proposing a European model of socialism (Rubin, 2020). Those progressive systems are funded by a regressive sales tax called a VAT (Wallop, 2010). This tax burden falls mostly on middle class and working families. Mr. Sander’s plan funds progressive programs with progressive taxes falling mostly on the wealthy. That ain’t socialism. We need a naming contest for a system where the wealthy do extra to help the community. Four syllables or less. I’d suggest Neighborism based on the movie “It’s a Wonderful Life,” with Jimmy Stewart. What’s your suggestion?

Last month President Trump launched a political tweet missile at the Supreme Court (Baker, 2020). This past week Senate Minority Leader Chuck Schumer hand carried his warning to the steps of the Supreme Court. He was part of a protest regarding a current course case that tests the court’s earlier decisions beginning with Roe v. Wade almost fifty years ago. Chief Justice John Roberts has admonished President Trump, Mr. Schumer and others that they should not threaten the Supreme Court. Mr. Schumer says he regrets his remarks (Pecorin, 2020). President Trump last apologized for his remarks when he was in the first grade.

The high court’s Bush v. Gore decision chose the outcome of the 2000 Presidential election and tarnished the court’s reputation as an objective body. Since the beginning of his tenure as Chief Justice in 2005, Mr. Roberts has tried to resuscitate the court’s reputation. In this age, tarnished reputations stay tarnished.

Was the court ever impartial? Over a hundred years ago, Albert Einstein sparked a revolution in physics with a set of mathematical equations which showed that impartiality was impossible. Our observations and conclusions are based on our frame of reference. In the past century an overwhelming body of evidence has substantiated Einstein’s claims.

A central proposition in physics has spread to the humanities. Is this a “hey man, everything is relative” moment? No. Understanding an argument’s frame of reference takes time and research. Most of us are too pressed for time and tend to discard arguments that we don’t instinctively like. Chief Justice Roberts maintains that the members of the high court are not prone to this common human fallibility. Do they cast aside the ideological framing they have formed during their life and career and reach a deliberative decision that fully balances all the considerations of a case before the court? No, of course not. Mr. Roberts is still living in a Newtonian world of imagined impartial justice. Perhaps he should remove his robe while shaving and see the man reflected in his mirror.

A long time ago, my sales manager said to me, “Either you believe in your own b.s. or someone else’s b.s. Wouldn’t you rather own it?” This week Mr. Biden looked like a man who owns someone else’s b.s. – that of Jim Clyburn and the folks in S. Carolina who gave Mr. Biden a sense of confidence. His walk up the stairs to a stage platform has grown more vigorous since Super Tuesday. His voice projects with a confidence and assuredness that I didn’t hear just two weeks ago. He no longer sounds like a frail man. I’m still not convinced he owns his b.s., but he may get there in the next few months.

Mr. Sanders, on the other hand, is a man who has owned what he says for decades. As an Independent, he has played a minor role in the Democratic political hierarchy despite his many years in the Senate. Will voters choose the man of measured manner, Mr. Biden, or put their money on the impassioned and principled Mr. Sanders?

I wish my teachers had told me that I needed to be 70+ to run for President. We have too many old people in Congress. I thought so when I was young. I think so today. Yes, old people have experience, sagacity and some have a more measured temperament. The age of the people we send to represent us in Washington does not reflect us.

The Congressional Research Service recently computed the average age of the House at nearly 58 years; of the Senate, 62 years (Manning, 2018). According to the Census Bureau, the U.S. population – including children – has a median age of 38 (2019). If we take out the 25% of the population under 18, a reasonable estimate of the median age of adults might be an age of 50, ten years younger than the current average age of the members of Congress.

Patrick Leahy, the other Senator from Vermont, has held his seat for almost half a century. They come to Washington and die in Washington. They believe that they have earned an objective wisdom through their long service in their seats. To paraphrase Socrates, the man who thinks he is wise is a danger to himself and others. Step aside. Let the young blood walk the halls and make a different set of mistakes than the ones you once made. Let go. Our country will be better for it.

//////////////////

Baker, P. (2020, February 25). Trump, in India, Demands Two Liberal Justices Recuse Themselves From His Cases. Retrieved from https://www.nytimes.com/2020/02/25/us/politics/trump-supreme-court.html

Manning, J. (CRS). (2018, December 20). Membership of the 115th Congress: A Profile. Congressional Research Service. Retrieved from https://www.senate.gov/CRSpubs/b8f6293e-c235-40fd-b895-6474d0f8e809.pdf

Pecorin, A., et al. (2020, March 5). Schumer says he regrets comments Chief Justice Roberts called ‘dangerous’ threats. ABC News. Retrieved from https://abcnews.go.com/Politics/chief-justice-john-roberts-calls-sen-chuck-schumer/story?id=69396928

Photo by Louis Velazquez on Unsplash

Rubin, R. (2020, March 6). Bernie Sanders’s Tax Plan Would Be Biggest Expansion of Taxation Since World War II. Wall St. Journal. Retrieved from https://www.wsj.com/articles/sanders-plan-would-hoist-taxes-11583449105 (paywall).

U.S. Census Bureau. (2019, July 16). Median Age Doesn’t Tell the Whole Story. Retrieved from https://www.census.gov/library/stories/2019/06/median-age-does-not-tell-the-whole-story.html

Wallop, H. (2010, April 13). General Election 2010: a brief history of the Value Added Tax. The Telegraph. Retrieved from https://www.telegraph.co.uk/news/election-2010/7582869/VAT-a-brief-history.html

Election Reflections

August 28, 2016

Let’s pay a visit to an earnest voter…

The Labor Day weekend was a week away and the election campaigns would swing into full gear following the holiday. He had a hard time deciding what to do with his vote in November.  His mom used to make it easy, voting the party ticket no matter what. He heard someone say that they would write in Reagan’s name this election. He told himself that he was more conscientious than that so he reviewed some of the issues.

Climate Change

He thought that climate change was at least partially caused by human activity, so he decided he should probably vote Democratic this election. Republicans were climate deniers, weren’t they?  Hell, some Republicans denied evolution.  Michele Bachmann had announced that she wasn’t running for re-election for her House seat. He thought that she should be put out to pasture where she could do the least harm.  He had read a climate scientist writing that it didn’t matter much anymore, that human activity had already flipped the switch.  Sure, we might be able to make a few small improvements, some amelioration of the damage, but it wasn’t worth arguing with others who preferred to think that climate change was as real as Santa Claus.  What was that song by Chris Rea?  The Road To Hell

White House Short-timers

Obama had a few months left in his second term.  Was he hoping that Iran didn’t do something crazy in the meantime?  Former White House Press Secretary Robert Gibbs said (Interview with David Axelrod) that the worst day in an election campaign is the best day working in the White House. Everyday some part of everything that happens in the world came into the White House so the stream of problems was constant.

September was coming up.  Did Obama say a little prayer that there would be no financial crisis like the one that beset former Prez Bush in September 2008?  Bush’s body language in those last few months of his second term screamed out that he wanted to be gone from the flood of problems coming across his desk.  Bush had turned out to be a big government Republican with dramatic big government solutions to the financial crisis.  He had flooded Iraq with lots of cash in 2003.  Then he had wanted $700 billion from Congress.  His Treasury Secretary, Hank Paulson, had famously handed the Congress a scrap of paper, the most concise emergency bailout plan ever devised.  Hank could have written it on a piece of toilet paper in the men’s room.  $700B!

Rock-em-sock-em big government robot fights for justice

Democrats had been proposing big government solutions to society’s problems for as long as he could remember.  Solutions that cost a lot of money and produced meager or mixed results.  Was it bad execution of a good solution or was it the wrong solution?   The Dems were good at blaming someone or something else when their programs didn’t work very well.  Human greed, Republicans, selfishness, and poverty were the usual suspects.

Republicans blamed most problems on government regulators, Democrats, high taxes, and a loss of Christian values.  Republicans believed that a progressive income tax, the taking of money from one person and giving it to another, was a violation of a person’s property rights.  He agreed with that so maybe he should vote Republican.  But then most Republicans wanted to take away a woman’s right to choose what happened inside of her own body.  That was also a violation of a woman’s property rights, a God given right to privacy. So which property rights should he hope to protect with his vote?  Neither party cared much for the Constitution, that was for sure.

Social mores

At heart he was a classic liberal, or what is now called a moderate Libertarian. Gay marriage, fine.  If transgender people wanted to use the sex of bathroom that they identified with, fine.  His granddaughter had said she didn’t care if some transgender boy wanted to use the bathroom. The stalls had doors.  Dems seemed more libertarian on social issues, but very autocratic on economic issues.  Why couldn’t the Dems or Republicans be libertarian on both social and economic issues?  Because then one of them would be the Libertarian Party, he thought ruefully.  The anti-government anarchists had taken over the Libertarian Party several decades earlier.  Maybe it was time for the moderates to take it back?

Taxes

He didn’t think that politicians in Washington should be using the tax code to correct what they perceived as inequities in society.  It was the Republicans in 2003 who had stopped the practice of penalizing married couples through the tax code.  A Democratic House and Senate had put that one into place in 1971 (1998 article) but it was Nixon, a Republican, who signed the legislation.  Democrats could justify any tax.

The Hammer of God

He didn’t think Bible thumping politicians should be telling us how to live our lives. He was with the Dems on this one.  No, God wasn’t dead.  He was kept alive by politicians who used Him as a rhetorical weapon against the other party. Running for his first term in Congress, Abraham Lincoln, a Whig, had endured accusations that he was not a religious man (Sandburg’s Lincoln bio).  The Whigs had morphed into the Republican Party during the 1850s and now it was the Republicans who used religion as a cudgel against Democrats.  (Obama warning in 2012 race)  Apparently, only Republicans knew God’s will and how to implement it here on earth.  How could he vote for a party that was so conceited and arrogant?

Obamacare

But he also thought that the Federal government had no constitutional right to be telling people that they had to buy health insurance.  Each party wanted to take away people’s rights and freedoms.  As a small employer for several decades, he had often wished that health insurance wasn’t tied to employment. Bigger companies could offer more favorable benefits to good employee prospects, and it was tough to compete with that. Despite his preference for private solutions to societal problems, he wished that there was a program like Medicare for all or no tax write offs for health care benefits.  One or the other.  A public option had been a part of Obama’s 2008 platform (Politifact) but he had not been a particularly strong leader on this one and had encountered resistance from the members of his own party.  The result was Obamacare, a rough draft legislative hodge-podge that was more typical of a preliminary committee product, not a final piece of law.  Democrats just sucked at crafting economic legislation yet, in an ironic twist, they tended to see most of society’s problems as economic ones.  Obama had got his health care legislation passed only to see it used against the Democratic Party in the important census election of 2010, when the Dems lost a large lead and control of the House. Bill Clinton had tried to pass a health care bill in 1993 and lost Democratic control of the Congress to the Republicans in the 1994 election.  The Dems had apparently not learned their lesson.

Security

He couldn’t decide who was going to best keep the country safe.  Republicans seemed to think that Mexicans threatened each American family somehow.  Not all Mexicans, he understood, just illegal Mexicans.  For years, hundreds of thousands of students and visitors had come to the U.S., then overstayed their visas and remained in the U.S. illegally.  According to Republicans, all those other illegals weren’t a problem. Just Mexicans.   The Donald would build a wall.  In 2006, a Republican Congress had approved funds for Homeland Security to build more fences along the southern border.  Neither Democrat or Republican Congresses had been able to move the fence building further along toward actual construction.  Having once solved the problem of building a skating rink in Central Park, the Donald thought that he – and only he – could get this fence thing going.  He wished the Donald good luck in herding 535 fat cats in Congress toward any one project.  As the top Fat Cat, maybe the Donald could make it work.

Crazy vs Experience

Nah, he thought, the Donald was too crazy and inexperienced. Most Presidents were either one or the other, but not both, except for Bill Clinton.  Clinton had been crazy enough to have sex with an intern in the Oval Office and inexperienced enough to propose a universal health care plan.  He had won the Presidency with the lowest popular vote in the country’s history yet Clinton had thought he had some clear mandate. Even strong Democratic control of both the House and Senate could not help him and within two years, Clinton certainly contributed to the loss of  both the House and Senate to the Republicans.

Split the vote

Several decades ago a co-worker had shared his personal voting system.  “Split your ticket in the hope that the government stays split,” the guy had said.  That way the politicians could do the least harm.  Maybe that’s what he would do this election.  His congressional vote didn’t matter.  Few Congressional districts were contested in the general election and his district had voted Democratic for more than forty years.  Republicans would likely keep the House anyway.  Democrats might just take the Senate so he should vote Democratic to make it more likely.  That would help split the Congress.  That still left his vote for President.

Supreme Court

Over and over again he had heard that this Presidential election was a vote for the direction of the Supreme Court for the next decade or more.  His secret hope was that the Court would remain at eight members. If there was no clear majority on the Court then there should be no precedence set in Constitutional law.

Libertarian?

Maybe he should vote for the Libertarian Candidate, Gary Johnson?  Johnson seemed neither inexperienced or crazy other than the fact that anyone who runs as a third party candidate in this country must be crazy.  If the Dems took the Senate, they could simply block any nominee to the court and keep the Court at 8 members.  He could tell himself that a Libertarian vote was a combined nod to both the Democrat and Republican parties.  It would not be first time that he had split his vote but it had been quite some time since it did it in the hopes of a split government.

Baseball

Having resolved all those election issues, he turned his attention to the World Series schedule.  If the series went to seven games, the last game would be played on November 4th, at the height of pre-election coverage and just a few days before the election. (Schedule) If the Cubs were in the World Series for the first time since 1945, the attention of many voters might easily be diverted to the historic match up.  Let’s say the Cubs won the series for the first time since 1908 and let’s imagine that the series went to seven games, with the final game played on Friday, the 4th. KC Royals’ fans had celebrated their 2015 series extra inning win over the Mets just two days after the final game.  He could imagine that millions of Chicago residents and former residents would be there to celebrate the event on Sunday perhaps and the festivities rolling into Monday.  Although Illinois was usually a solid vote for the Democratic Presidential contender, he imagined the possibility that thousands of Illinois voters, distracted by the post-Series events, didn’t vote in Tuesday’s election.  Like Florida in 2000, the results turned on the votes of a few in Illinois and Donald Trump won the Presidency because the Cubs won the series.  Nah, he thought, sounds too much like a bad movie script.

Next week: a troubling long term trend that will hurt many investors

Charitable Giving

This is the time of year when many people reach out to their favorite charities.  Consider a charity that is helping with disaster relief after SuperStorm Sandy, provides meals for families and seniors, provides housing assistance for those in need, and so much more.  No, it is not the Red Cross, the Meals on Wheels program or Habitat for Humanity.  The charity is the U.S. government.  They are desperately in need of funds.  As they help clean up after Sandy, they have not even finished paying for damages from hurricane Katrina that battered Louisiana, Mississippi and Alabama in 2005.  Anyone can donate online at the U.S. Treasury.  As with other charities, you can use a credit card.

During and since the drafting of the U.S. Constitution over two hundred years ago, we have argued over the wording of the “general welfare” clause of the Constitution (Article 1, Section 8).  James Madison, a Federalist and chief drafter of the Constitution, said that the phrase was a limited power conferred on the federal government; that “general welfare” meant that welfare which applied to all the people.  You can read Federalist Paper No. 41 for his more lengthy explanation of this controversial phrase.

The anti-Federalists, always suspicious of the powers given to a large and powerful central government, replied that “general welfare” could mean anything.  What, they argued, was to prevent this newly formed Federal Government from becoming a charity?

Madison scoffed, arguing that the taxing power was restricted to only those taxes which were uniform throughout the country.  The taxing power is specified in the same sentence as the “general welfare” clause, separated only by a semicolon.  Therefore, it was preposterous that anyone could argue that “general welfare” could mean anything.

Alexander Hamilton, also a Federalist and an advocate of a strong Federal Government, argued that the “general welfare” clause was essentially a plenary power given to Congress, in line with its power to spend.  To the anti-Federalists, this violated the spirit of the Constitution which was designed to enumerate, or limit, the powers of central government.

In short, Madison says general welfare is limited by the taxing power that immediately follows.  Hamilton says it is not limited because Congress’ power to spend is not limited. 

United States vs. Butler in 1936 and Helvering vs. Davis in 1937 were two Supreme Court decisions that sided with Hamilton.  What the anti-Federalists had warned about was about to come true.  The U.S. Government was on its way to becoming – over the next 75 years – the largest charity in the world.

Some think that charity should be part of a government’s role; although some of those would argue that charity should not be the chief role of a government, as it is now.  Some argue that charity should not be in the hands of government.

Many of us will receive appeals from many charities during this season of giving.  The Treasury does not mail appeals for money despite the fact that it is performing the same helpful acts as other charities.  Charity Navigator, a charity watch dog organization, does not rate the U.S. Treasury for its management of the funds it receives.  But the Treasury really does need the money as it helps to feed, cloth and house millions of people each month.  

Health Care and the Supremes, Part 1

Sorry, no pictures or graphs this week 😉

A few weeks ago, the Supreme Court ruled on the constitutionality of the health care act.  26 states brought suit against the government, asserting that the Government had no constitutional authority to impose a penalty on people for not buying health insurance.  Regardless of the arguments for and against, many of us have a gut level aversion to the Federal Government, or a State Government, for that matter, forcing us to do something.  While living in Brooklyn in the early 70s, I knew two people who had left good jobs to take sporadic cash only jobs because they did not want to be forced to have their taxes pay for the Vietnam War, a war they – and many others – believed was immoral.  In my state, Colorado, there have been many who think that the state government has no right to force drivers to wear seat belts.  For those of you in the more crowded coastal states with better public transportation systems, driving in the western states is as much a necessity of living as eating. 

The Government argued that Congress had the power to impose an individual mandate to buy health insurance under the following authorities: 1) the power to regulate Commerce as found in Article 1, Section 8, Clause 3 of the Constitution; 2) the Necessary and Proper Clause (clause 18 of the same section); and 3) the taxing power in the Constitution.

Writing for a 5-4 majority, Chief Justice Roberts rejected the first argument, writing “Congress has never attempted to rely on that power [the constitutional power to regulate Commerce] to compel individuals not engaged in commerce to purchase an unwanted product.” (pg. 18 majority opinion) He asserts that the Constitutional grant of power to the Congress to regulate Commerce does not imply that the Congress can create Commerce.  On page 20, he writes “The individual mandate … does not regulate existing commercial activity.”  On pg. 24, Roberts writes “The Framers [of the Constitution] gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.”  In short, “regulate” does not mean “create” nor does it mean “compel.”

During oral arguments, Justices Roberts and Kennedy had repeatedly asked the government advocate for a limiting principle to Congress’ authority to regulate Commerce.  On page 21, Roberts makes an important distinction in the Wickard v Filburn case regarding a 1942 law that had the effect of regulating a farmer, Roscoe Filburn, growing wheat for his own consumption.  The Wickard decision, Roberts summarized,  upheld Congress’ authority to regulate the production of something, not the consumption of a product.  The individual mandate regulates the consumption of a product.  “Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.” (pg. 23) 

On page 25, Roberts rejects the Government’s oft repeated argument that individuals are inherently “active in the market for health care,” writing that any inactivity can be said to be participating in some arbitrary market; without any limiting distinction, the phrase has no constitutional significance. He writes “Our precedents recognize Congress’s power to regulate ‘class[es] of activities’…not classes of individuals, apart from any activity in which they are engaged.”  He finds that the individual mandate breaks precedent: “The individual mandate’s regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity.”  Who can regulate individuals?  The states alone have that power: “Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

Roberts rejected the government’s second argument that Congress has the authority to impose the individual mandate under the Necessary and Proper Clause as a regulatory mechanism associated with the existing economic activity of healthcare.  The Government argued that the mandate is an “integral part of a comprehensive scheme of economic regulation.”  Roberts reasserts previous precedents that the intention of this clause of the Constitution is to unequivocally grant Congress power which is incidental or instrumental in enacting the powers enumerated in the previous clauses of that section of the Constitution.  It does not give Congress new powers or enable Congress the ability to expand its power.

The Government’s third argument, a fallback position, was that the mandate was not “ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.”  Roberts cites previous precedents that “if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the means that does not do so.”  On page 31, Roberts writes that “The most straightforward reading of the mandate is that it commands individuals to purchase insurance.”  However, he acknowledges the merits of the Government’s contention that the mandate “can be regarded as establishing a condition – not owning health insurance – that triggers a tax” and that the mandate “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” (pg. 32) Roberts acknowledges that this interpretation of the mandate is not the most natural one, but cites previous precedent that “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

For the purposes of the Constitution, is the individual mandate a tax or an “assessable penalty?”  Roberts cites several previous laws in which Congress has shown that it regards a tax and a penalty as two separate entities. He quotes a previous decision, that of Drexel Furniture, which ruled that what distinguishes a penalty from a tax is whether an exaction or payment is punitive.  If so, then it is a penalty.  The tax imposed by the individual mandate is less than what it would cost someone to buy a policy, indicating that Congress had no intent to impose a punitive penalty. The individual mandate does not have a scienter requirement typically associated with a penalty; that an individual must have intent or knowledge that their action or inaction is against the law.  In addition, there is no criminal prosecution if someone does not pay the tax, another indication of Congress’ intention that the mandate is a tax.  In the law, there is no requirement to buy an insurance policy; there is only the imposition of a tax if you don’t buy a policy.  Roberts also cites an older precedent regarding the child labor law tax.  Even though the law called it a tax, the court held that, because it was very punitive, it was a penalty, regardless of what Congress called it.  Roberts is continuing to build on previous court decisions to reinforce the court’s policy that, although the court should regard the use of a particular word by Congress as intentional, Congress can not obfuscate the stated intentions of the entirety of a law by attaching a label to a piece of it.  On page 12 of the majority opinion, he writes “Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes by describing it as one or the other.”

Did the Supreme Court even have the authority to hear this case at this time?  Did the 1867 Anti-Injunction Act prevent the court from hearing the case till someone actually paid the tax?  In finding that the individual mandate can be construed as a tax, Roberts distinguishes between a present tax and a future tax, justifying the Court’s authority to hear the case at this time. The Anti-Injunction Act was designed to prevent a state or any party from “restraining the assessment or collection of tax” (pg. 12 of majority opinion).  The tax will not go into effect for two years and no one will actually pay the tax for three years.  The suit that the 26 states have brought before the Supreme Court is not intended to delay the collection of this tax; therefore, Roberts rules that the Supreme Court can hear the case.

Although Justice Ginsburg was in the majority, she strongly dissented with Roberts arguments that the individual mandate was unconstitutional under the Commerce clause.  Hopefully, I’ll get some time to go into Ginsburg’s arguments as well as the dissenting opinions of Justices Scalia, Kennedy, Thomas and Alito.

Health Care Republican Style

This week the Supreme Court is scheduled to give their verdict on the constitutionality of 1) the individual mandate; 2) whether the Supreme Court can make a ruling at this time (are the penalties a tax or not a tax?); 3) if they rule against the individual mandate, is the mandate “separable” from the health care bill and can the Court let the rest of the bill stand; and 4) are changes to Medicaid eligibility rules an imposition on the states that effectively forces the states to accept the new rules or lose funding for their entire Medicaid program.

Jerry sent me a link to a 2009 set of Republican proposals  for health care reform.  here was my response:

Jer,

This is a Republican position paper from June 2009.  At that time Republicans were chiefly concerned about proposals for a single payer system.  If you read the paper, you will see that many of the Republican reforms were incorporated in the final health care bill.  So why the Republican push back against the health care law?

Dick Armey is a former Texas Congressman who was (and still is?) chairman of Freedom Works, which provided the financial and organizational resources for the formation of the Tea Party.  Armey fought against the individual mandate in 1993 under “Hilarycare” and prodded Tea Party members to protest against the individual mandate in “Obamacare” (why isn’t Medicare called “JohnsonCare”?).  While not a staunch conservative, he felt that the Republican Party had drifted too much to the left.  Armey retired after staunch conservatives continued to challenge him for his seat so he is not one of the wacko conservatives, despite what some Democratic pundits say.

The protest against Obamacare was a wedge issue used by Karl Rove and other Republican strategists as a way to take back the House in 2010 and it worked.

Republican reforms incorporated into the bill may not have been done exactly as Republicans wanted but they were included:

Affordable and accessible health care of all Americans with no refusal for pre-existing conditions.

Enable people to keep the current health care plan they have with their employer.

Give people a choice of health plans and allow small businesses access to affordable health plans (state insurance exchanges)

Prevention, wellness and disease management programs – emphasis on primary care (Bernie Sanders’ amendment that funded Community Health Clinics)

Tax fairness – credits for those buying individual plans so that they have the same tax benefits as people who have employer sponsored plans. (Republican Dan Issa’s committee now finds that this would help too many poor people)

Republican proposals that were not included in the health care bill:

Tort reform that some say causes doctors to order additional tests just to cover their liability.  Estimates of the savings under tort reform run from 1% – 10%.  My own personal experience with my parents’ doctors is that they order additional tests to confirm their diagnosis before starting a definitive treatment program.  The general idea of tort reform is good but the devil is in the details.  If your epileptic child becomes a vegetable after your doctor treats her for the epilepsy, do you want there to be a $100K cap on damages that you can get from the doctor?  Probably not.

Expansion of health savings accounts

I don’t know if these were included:

Additional oversight and authority to Medicare and Medicaid to stop waste and fraud.  One proposal was that Medicare should change its policy of paying bills received within 30 days.  Fraudulent clinics bill Medicare, take the money and have closed up shop by the time Medicare investigators discover the fraud (featured on 60 Minutes program).  The problem with this proposal is that this would also make it difficult for smaller clinics and individual physicians to manage their cash flows.

Financial help for family members who provide in-home care for a relative.

Republicans have successfully used the emotional issue of the individual mandate to decry the entire health care bill.  Should Republicans “repeal and replace”, many of the elements that are in the current health care bill will also be in the Republican bill.  But Republicans will claim that it is theirs and it is substantively different than the current bill.  That is how a party wins elections.  The health care debate is not primarily about health care – it is about elections and power.

ObamaCare and the Supremes

This past week the Supreme Court (court) listened to oral arguments on the constitutionality of the individual mandate provision of the Affordable Care Act, the health care law often referred to as ObamaCare.  There were several aspects of the law that were argued in separate sessions. These arguments are available in written form  and oral form in mp3 format.  I have included links to the audio below and a link to one of the written transcripts but you can select the transcripts for any of the arguments using the topic list number for each argument.

The first question the court heard was whether the individual mandate was a tax (11-398 Monday Argument).  If the court rules that it is a tax then the 26 states that brought suit against the federal government, which I’ll refer to as the government, have no standing to sue at this time because no one can bring suit against the government before they pay the tax.  In that case, no one could bring suit until 2015 when someone actually pays the tax.  The court would not rule on the constitutional aspects of the mandate till that time.  Wanting a resolution to the constitutionality of the health care law, neither the government or the states wanted to argue that the individual mandate was a tax.  Since neither party wanted to argue the point, the court invited Michael Carvin as separate counsel to argue the case that the mandate is a tax.  The government argued that the mandate is a penalty under the taxing authority of Congress.  Understanding that the health care law is a contentious issue before a Presidential election, the court will probably side with the case that the mandate is not a tax so that they can take up the constitutional questions that the law raises.

The second session (oral or written ) consisted of oral arguments for and against the constitutionality of the individual mandate (11-398 Tuesday Argument).  The third session argued whether the court can strike down the individual mandate and let the rest of the law stand, referred to as the “severability” of the individual mandate, i.e. can the mandate be severed from the rest of the law (11-393 Argument).  The fourth session took up the question: can the federal government withdraw existing Medicaid funds it provides to the states if the states do not want to follow the new additional Medicaid guidelines that ObamaCare imposes (11-400 Argument)

Justice Scalia summarized the concerns of the court’s conservative justices: “An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.”

Is the individual mandate within the scope of Congress’ power?  In Article 1, Section 8 of the Constitution, the Federal government is given a list of enumerated powers.  The Tenth Amendment asserts that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Amendments to the Constitution are the  definitive way to give the federal government an additional enumerated power; the Sixteenth Amendment to collect taxes on income is an example.  Since the federal government’s power is limited to what is allowed under the Constitution, it must argue for an expanded interpretation of the authority given to it by the Constitution.   It does this under the “Basket Clause” power enumerated in Article 1 which gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

One of those “foregoing powers” is the Commerce clause in Article 1: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The intent of the Constitution regarding the federal government is to put limits on the power of that government.  In any case involving the authority of the federal government, the court often wants to hear a limiting provision so that their judicial decision does not open the floodgates for unlimited government authority.  The subject of limits was raised frequently by the conservative justices on the court.  Congress has enumerated powers; the states have plenary powers.  The states can force an individual to buy car insurance; the federal government does not have that authority.  In many areas, the states have coercive powers over the individual that the federal government does not have.

In this case the government argued that the individual mandate is within its power to regulate interstate commerce.  The individual mandate to buy insurance is needed in order to require insurance companies to write policies with community rating, i.e. risk is spread throughout a large community, and guaranteed issue, i.e. no denial because of medical history or condition.  The states argued that the law’s individual mandate to buy insurance is unconstitutionally forcing people to buy a product, thus creating an insurance market.

Justice Breyer cited a lower court opinion (Sutton) that an earlier precedent setting case, Wickard v. Filburn, effectively allowed the government to force a farmer to buy wheat. Other justices disagreed with this interpretation of the Wickard case. 

The government advocate, Donald Verrilli, made what is its primary point:  health care insurance is simply a financing mechanism for health care services which all but a few will consume at some point in their lives. Since all people are or will be in the market for health care services, the government has the authority to regulate the payment for those services.

Justice Alito asked Verrilli, the government advocate, whether the government could require people to buy burial insurance since everyone will need to be buried or cremated.  Verrilli made the argument that burial expenses do not involve cost shifting the way that paying for health care insurance does.  Justice Alito countered that the government does pick up the expense of burying or cremating someone who cannot pay but Verrilli argued that this comes out of general tax revenues and these costs are miniscule when compared to the unreimbursed costs of health care.  Justice Scalia asked the rhetorical question: why couldn’t Congress just pass a tax to cover the costs of unreimbursed care?  There would be no question of constitutional authority since Congress has the express power to levy such a tax.  Although many liberals disagree with much of Justice Scalia’s opinions, they have asked this same question.

Justice Kennedy noted that the court has an implied presumption that a law is constitutional but that the government has a burden to prove its case when enacting a law that requires an individual to buy something, a requirement that fundamentally changes the relationship between the government and the individual. Kennedy noted that the health care act requires an affirmative action from an individual, i.e. buy insurance.  Under existing tort law, the government can not require an individual to take an action to prevent a blind man from stepping in front of oncoming traffic, despite the grave moral concerns this raises.  The laws of this country delineate a clear boundary around the individual that the government can not cross.  Kennedy is concerned that the court may set a precedent in this case that erodes that boundary.  Often regarded as the swing vote on the court, Kennedy’s remarks show his concerns about the constitutional questions and limits on Congressional power that the law raises.

Mr. Verrilli argued that both sides agree that the government can regulate transactions affecting interstate commerce at the point of sale.  Paul Clement, the states’ advocate, later confirmed his agreement when questioned by Justice Sotomayor:  Yes, the government can regulate commerce at the point of sale.  Verrilli argued that insurance is the way that health care services are paid for at the time of delivery or point of sale; however, no one can buy insurance at the time of delivery since no insurance company will sell someone a policy at that time.  Given this rather unique feature of health care transactions, the government has the authority to ensure that people have insurance in advance of the point of sale.  Further on, I’ll cover Clement’s argument against this contention.

Given the government’s argument, Chief Justice Roberts asked if the government could require people to buy a cell phone so that they could call for emergency services, i.e. police, fire, ambulance and roadside service, which most people will need in their lifetime.  Verrilli argued that, unlike health care, there is no market for emergency services. Justice Breyer argued that the goverment could require someone to buy a cell phone or burial insurance.  As an example, Breyer challenged Paul Clement, the states’ advocate, couldn’t the government require people to get vaccinated to prevent the spread of a disease that would kill 60% or more of the population.  Clement answered that the government could not do so.  This argument between Breyer and Clement reflects the sharply differing interpretations of the General Welfare clause of Article 1.

Justice Kennedy questioned the government’s case that the health insurance market and the health services market are the same market.  The health care act requires people to buy insurance for services that they will never need; i.e. maternity care or pediatric care.  The government advocate, Donald Verrilli, argued that the government has a right to impose minimum coverage provisions as a regulatory detail.

Justice Ginsburg noted that the government’s brief makes the case that the health care market is one where there is direct cost shifting from one market participant to another, thereby constituting an existing market.  Insurance companies and hospitals charge additional to people with insurance to pay for those who have no health insurance.  Verrilli concurred, noting that this direct cost shifting distinguishes the health care market and justifies the government’s regulation of this cost shifting.  Justice Scalia argued that there is an implied cost shifting when someone decides not to buy a car.  To make a profit, car companies have to charge more to compensate for selling fewer cars.  Verrilli argued that, unlike cars, health care will be provided regardless of one’s ability to pay.  Although Scalia failed to make his point directly, he showed a skeptical wariness of  allowing the government to control and expand the definition of what is a market.  If given a wide latitude to define a market, the government could define almost any activity as a market in the future and its authority to regulate that newly defined market.

Justice Sotomayor asked the states’ advocate, Paul Clement, whether the government could enact a “health care responsibility payment” that would be waived on proof of insurance.  Mr. Clement answered that there might be some question whether Congress could do so under its taxing authority.  Such a payment could be construed as a direct tax that would presumably not be a uniform tax and unconstitutional under Article 1.

Justice Breyer argued that Congress has historically created commerce out of nothing, noting the creation of a national bank as a regulation of commerce which did not previously exist.  Breyer cited various court decisions that ruled the growing of wheat or marijuana as activities engaging in commerce and affirming Congress’ authority to regulate such activities under the Commerce clause.  Clement countered that the creation of a national bank was not done so under the Commerce clause, nor did the government require an affirmative action from individuals – that they deposit their money only in the national bank.  Clement returned again to this question of coercion, adding that the government does not require people to buy cars to support the car industry; rather, the government offered incentives such as the Cash for Clunkers program.  The government does not support wheat farmers by requiring everyone to buy so many loaves of wheat.  In short, the government has no authority or precedence for forcing individuals into a market.

In response to challenges by Justice Roberts and Kagan, Clement argued that everyone is not in the health care market; that through this insurance mandate, the government is trying to force everyone into the market. Justice Kagan responded that insurance is a way of funding a market that everyone will participate in during their lifetime. Clement countered that not everyone will use the health care services during the year that they have bought the policy for.  Clement consistently draws the distinction between the health care services market and the health care insurance market, an appeal to the conservative justices who are wary of Congress’ future desires to make connections between markets in order to extend the reach of Congressional authority under the Commerce clause.

Justice Kagan summed up what will lie at the heart of arguments both for and against the constitutionality of this law:  “who’s in commerce and when are they in commerce?”