ObamaCare and Roberts

Before the decision, liberals were desperately afraid of a political 5-4 result. Today they celebrate a political 5-4 result.

In retrospect, no other result was probable. Obama surrogates were clear that if the court overturned ObamaCare, questioning the legitimacy of the court would have been at the heart of his re-election campaign. Any responsible Justice would seek to avoid that. This also means the court couldn't very well punt -- an Obama re-election would put the court on even weaker ground. On the other hand, there was no way Roberts, or even Kennedy, were not going to uphold federalist principles, which are the bedrock of what it means to be a conservative judge.

Roberts' decision had obvious flaws. It is cumbersome to read in full and it's logic is uneven. However, last minute or not, was absolute genius.

In particular, as he noted "resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries." Conservatives, above all, should understand that the court cannot simply resolve political controversies by coming down on one side or the other: Abortion is still a political controversy and Gay marriage will continue to be long after the court expands the constitution to include it. In a democracy, the only way to settle political controversies is to persuade the public. When the court ham-handedly wades into a controversy it cannot resolve, it does so at the expense of its institutional authority.

Roberts opinion is attentive to public opinion in a number of ways. It contains a number of deadly, made-for-repetition, sound-bites. His "umpire"-style, even-handedness, will now be so fixed in the public mind that liberal critics will damage only their own credibility when they (inevitably) return to accusing him of being a partisan ideologue. Had the court overturned the unpopular mandate, Democratic candidates, Obama above all, would have been able to distance themselves from it in the fall, whereas certifying the mandate as a tax is an obvious gift to Republican candidates. Contributing to a Republican victory is the most effective manner -- even for a Chief Justice -- to settle this controversy in the favor of conservatives.

Finally, and above all, Congresses' politically easier spending, necessary and proper and commerce powers are all now more limited. ObamaCare would never have passed if its supporters were forced to acknowledge the mandate as a tax. Future, similar, congressional power graps will have to more honestly confront their tax-ness during the legislative process and therefore are -- Roberts has ensured -- less politically viable.

Protesting Too Much

The Polish government is most unhappy with President Obama for referring to a "Polish death camp" rather than a "German death camp in Nazi-occupied Poland."

There is no question that the Camp in question was a German death camp in Nazi-occupied Poland. And there is no question that many Poles acquitted themselves righteously.

However, the Polish attitude towards the Holocaust is often distasteful. To listen to the Polish tour guide who took me through Auschwitz, one might have realized that it was Jews and not Poles generally that were targeted. There is no question that Poland was not simply hospitable to its Jewish residents and that it was not, simply, an innocent, helpless, victim, of the holocaust.

Intellectual vs Intelligent III

In a NYTimes Blog, University of Texas Law Professor, Sanford Levinson, argues that "the American political system [is] dysfunctional, even pathological" and the Constitution is, in large part, to blame.

His lesser critiques include "the clauses that helped to entrench chattel slavery," the unpopular Electoral College, which will produce this year "yet another election that 'battleground states' will dominate while the three largest states will be largely ignored," and "our vaunted system of 'separation of powers'" which "means that we rarely have anything that can truly be described as a 'government.'"

His primary critique is that "our Constitution among the most difficult to amend of any in the world" which "prevents needed reforms." We do not recognize that there "is anything to be concerned about" because Americans "have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well." The needed reforms he has in mind include increased use of referendum, "permit[ting] each newly elected president to appoint 50 members of the House and 10 members of the Senate," (or "reducing, if not eliminating, the president’s power to veto legislation."), requiring the votes of "seven of the nine Supreme Court justices... to overturn national legislation" and a judicial appointment process that is "electorally accountable" and by commission "to limit the politicization of the... process."

This primary critique betrays a startling ignorance of the role the constitution plays in our society. As a nation of immigrants without unifying ethnic, religious or historical attachments, we are bound together entirely through an American Bible, of which the constitution is the most important part -- why else would liberal Manhattanites and conservative Texans willingly allow the others votes to hold power over their lives? The constitution serves this function to the degree it is commonly revered. The common reverence for the constitution goes hand-in-hand with the difficulty involved, the social consensus required, in amending it.

In general, its hard to see how his argument translates to any concrete concerns. For example, the only evident impact of having Florida, rather than California and Texas, dominate campaign focus, is that campaigns are less expensive and, therefore, less reliant on large donors they they might otherwise be. More fundamentally, gridlock in Washington reflects a public deeply unsure and divided about how best to meet the challenges facing us. Its hard to see how an intelligent person could believe unquestioningly that empowering government to act more decisively in the absence of social consensus would lead to better political policy. Or rather, one doesn't have to read too deeply between the lines, to see in Professor Levinson (and those like him) a person who has given up on Democracy.

ObamaCare and the Court, Day 2

Our favorite justice, Alito, emphasized our argument:

JUSTICE ALITO: ...here the reason why there is cost shifting is because the government has mandated that. It has required hospitals to provide emergency treatment, and instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

MR. CLEMENT: Justice Alito, that is exactly the government's argument. It's an extraordinarily illogical argument.

Tangentially, the Chief Justice employed his characteristic style of argument: frame the liberal premise -- in this case that the Lochner era was an "unhappy period" to which we would never, ever wish to return -- as arguing the conservative conclusion.

CHIEF JUSTICE ROBERTS: Well, now why is that? Congress could — once you — once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be — it would be going back to Lochner if we were put in the position of saying no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power.

Both Kennedy and Kagan wondered out loud "whether the determined efforts of Congress not to refer to this as a tax make a difference." But not Breyer, despite advocating "enforced by the legislature" as a "limiting principle." Breyer and Sotomayor, more or less, seemed to advance their view of commerce clause power without practical limit.

Ginsberg had, one of the stronger arguments of the day -- "There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to get — to preserve private insurers, it can't do that" -- and one of the weakest, arguing that insurance "works" by forcing one group of people to subsidize another.

On the whole, Roberts seemed sympathetic to the government's argument that "almost everybody is going to enter the health care market" with the caveat that "you cannot say that everybody is going to need substance [ab]use treatment... and yet that is part of what you require them to purchase." While Kennedy seemed to waffle (or wobble?), a decision which upheld the mandate only narrowly for catastrophic care, might be the impractical kind of equanimity Kennedy in winter seems to like best.

ObamaCare and the Court

There are three basic arguments in support of Obamacare's constitutionality.

The first, and perhaps most honest, is political: The administration will ensure there are grave political consequences should Obamacare be overturned. To this end, influential surrogates argue that any legal opposition to Obamacare is partisan and illegitimate.

The second is both most common and, to my ears, incoherent. The argument is congress has a right to impose the individual mandate because "The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually." These costs, of course, are economic activity entirely created by government rules requiring hospitals treat people who cant pay. By way of analogy: Do liberals really believe that the government can pass a law requiring all restaurants feed anyone who comes in regardless of ability to pay, and then -- because restaurants would otherwise all go out of business -- mandate that everyone eat out once a week or pay a penalty?

The most compelling argument is, for lack of a better term, "realist": The conservative argument "liberty is at stake," is undermined by the recognition that congress could have accomplished the same policy through constitutionally permissible, if politically impossible, means. The weakness of that argument is, simply, it frames a vote against Obamacare as a vote for the rule of law. Further, if the liberal view is that liberty is best protected by voters rather than courts, then the courts ought be hostile towards laws that would be politically impossible pass properly.

One gets the sense that Roberts (and, for different reasons, Kennedy) is very sensitive to political pressure, and -- given the reasonable chance elections will wash this issue away -- would be very eager to punt. A punt -- hampering the economy with continued uncertainly -- would also be most damaging politically to Obama. On the other hand, should Kennedy wish to honor his lifelong federalism, he will likely be on much safer political ground in overturning, now, the medicaid expansion.

Faith and Courage

David Brooks argues that though "we’ve become accustomed to the faith-driven athlete", being a "religious person in professional sports" is an "anomaly" and "problematic." This is because "the moral ethos of sport is in tension with the moral ethos of faith... The sports hero is assertive, proud and intimidating... his primary virtue is courage." On the other hand "the religious ethos is about redemption... humility is the primary virtue... you achieve your identity through self-effacement.... you lead most boldly when you consider yourself an instrument of a larger cause". Brooks concludes that "the two moral universes are not reconcilable."

This is entirely foolish. While Brooks may be narrowly correct that there is some abstract intellectual tension, the fact that faith-driven athletes are commonplace is evidence that the values of faith resonate rather than conflict with their professional lives. This is no great puzzle. In Brooks' description, religious values are very aligned with the crucial values of teamwork. It should be obvious that it is no coincidence that religiosity appears more prevalent within the world of team sports. More fundamentally, how does Brooks fail to understand the degree to which courage can be ground in faith?

In the end, it is hardly surprising that a man enamored as Brooks is with paternalistic social science would indulge conceptual castles over the testified experience of others.

Brooks and Krugman II

While this blog is often critical of David Brooks, it can give credit where due. What is not to love about his deserved, if petulant, absolute smack-down of colleague Krugman?

Over the past two weeks, Charles Murray’s book, “Coming Apart,” has restarted the social disruption debate. But, judging by the firestorm, you would have no idea that the sociological and psychological research of the past 25 years even existed... his left-wing critics in the blogosphere have reverted to crude 1970s economic determinism...

Liberal economists haven’t silenced conservatives, but they have completely eclipsed liberal sociologists and liberal psychologists. Even noneconomist commentators reduce the rich texture of how disadvantage is actually lived to a crude materialism that has little to do with reality.

This economic determinism would be bad enough if it was just making public debate dumber. But the amputation of sociologic, psychological and cognitive considerations makes good policy impossible.

The American social fabric is now so depleted that even if manufacturing jobs miraculously came back we still would not be producing enough stable, skilled workers to fill them. It’s not enough just to have economic growth policies. The country also needs to rebuild orderly communities...

Social repair requires sociological thinking. The depressing lesson of the last few weeks is that the public debate is dominated by people who stopped thinking in 1975.