Saturday, March 31, 2012

Parsing the fine points

Could it come down to semantics?

Jonathan Cohn, writing for The New Republic analyzes the decision before the Supreme Court on the Affordable Care Act (ObamaCare).

The question is whether the individual mandate is constitutional.   Cohn writes:
" . . . nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital . . . 

"Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law's architects had simply used the word "tax" to describe the penalty.

"Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the President didn’t use perfectly constitutional language to describe it. . . . "

Let's hope that kind of analytic thinking finds its way into the Justices' deliberations.   Perhaps our two most recent additions to the court, Sotomayor and Kagan, will make that case.


Broccoli, schmoccoli

Justice Antonin Scalia was his usual colorful self (sarcastic and snide) in questioning the lawyers about the health care reform law.

Pursuing the consequences of the government requiring people to make a particular purchase, he said, if the government can require you to buy health insurance, what's to stop them from requiring that you buy broccoli or burial insurance?

Broccoli, schmoccoli.    That's a bogus claim and quite silly of Scalia to bring it up.

First, there is no national crisis concerning broccoli that needs to be fixed.

Second, if some people choose not to buy broccoli, the rest of us are not required to pay a higher price for our broccoli in order to provide others with the necessary broccoli they refuse to buy but will consume anyway.

Third, people can easily get through life without eating broccoli.   Preferring Brussels sprouts instead is perfectly fine.   You might come closer to a valid food analogy if we were talking about people who refuse to purchase any food for themselves at all and routinely turn up starving at soup kitchens and asking to be fed.   But that's not what Scalia said.

Fourth, about burial insurance.   The cost to the government (meaning all of us) for burying (or cremating) paupers is a relatively small amount compared to the cost of hospitalizations and surgery that health insurance covers.  Burying paupers is not bankrupting the country.

So, Mr. Scalia.   It sounds like you're planning to reverse yourself by voting against this law, which seems to call into question the same legal point that you wrote a favorable opinion for in the past.   How do you justify the inconsistency?   Do you realize your partisan contempt is showing?

Emerson said:   "A foolish consistency is the hobgoblin of little minds."   But he wasn't talking about the Constitution.   He was talking about compulsive, nit-picky snobs in their daily lives.


Friday, March 30, 2012

Trayvon Martin #5: Florida's 'Stand Your Ground" law

Professor Edward Queen is the Director of an ethics program at Emory University.   He wrote about the Florida "Stand Your Ground" law that figures prominently in the Trayvon Martin killing and the way police handled the case initially.    This will be a combination of summaries and quotes from his article:
 ". . . Those who created the conditions for Martin’s killing those who, one might say, invited it were the Florida legislators who voted for a law that undid not only decades of positive law regarding self-defense but also centuries of legal tradition. . . . 

[Such laws] "rip apart the traditional understanding of the legitimate use of deadly force in self-defense and invite people to kill.  Traditionally, the law understood deadly force to be justified in self-protection only when an individual reasonably believed that its use was necessary to prevent imminent and unlawful use of deadly force by the aggressor. Much of the tradition also argued that deadly force, outside of one’s immediate home, was not justified if a nondeadly response, such as retreating to a safe place, would suffice. . . "
Twenty other states have similar laws to the one Florida adopted in 2005.   Before these new laws, most laws governing self-defense killings required one to show that it was reasonable to use deadly force to protect oneself.

Now the new Florida law "expressly presumes" all of this, without requiring reasonable demonstration of the claimed facts.  It "immunizes" the individual from arrest or even being detained in custody.  That's why the police could not arrest Zimmerman and do a thorough investigation. 
 "One can only be shocked at this law’s idiocy. It is, simply, an invitation to kill.

"Under the “stand your ground” law, any liar who kills someone and can concoct a reasonably plausible story cannot be arrested by the police or even taken in for questioning. Lest one think the Martin case is exceptional, justifiable homicide/self-defense claims have tripled since the law’s adoption, . . . "
If there had not been the public outcry and rallying of support, the facts would not have emerged, because the police are prevented from doing their job by this law.   This also increases the likelihood that biases and prejudices among the police officers themselves may easily get hidden behind these laws.
 "In their thoughtless attempts to undo the wisdom of centuries, extremists in the Florida Legislature went out of their way, if not to legalize murder, at least to decriminalize it. Each legislator who supported the law had a hand in Trayvon Martin’s killing and perhaps others.
"With its craven attempt to garner votes by purportedly expanding individuals’ abilities to protect themselves, the Florida Legislature has made all of us targets and each of us a potential victim."
This is very troubling -- yet another very wrong legacy of the gun lobby and the anti-government right wingers who have gained even more power over state legislatures than the federal government.


Thursday, March 29, 2012

Maybe I was wrong

I've been thinking that, if SCOTUS overturns part or all of the Affordable Care Act (ACA), it would be a big loss for Obama and jeopardize his re-election.

But some Republican strategists are saying that overturning it will practically guarantee Obama's re-election.

Let me hasten to add that I'm speaking here only about the political effect.   I definitely think a positive outcome would benefit the American people.   However, this may be the silver lining in a defeat -- as it's being spun by both sides but with a different twist.

Some Republicans are salivating at the prospect that the court will overturn ACA, either in part or all of it.   But they also see the upholding of it as a political gain for them.   It goes like this:   If it is upheld, then they make the case that the only way to get rid of ObamaCare is to get rid of Obama.  Ergo, more energy to come out and vote him out of office.

On the other hand, here's what James Carville had to say:
“I think this will be the best thing that has ever happened to the Democratic Party. . . .  “You know, what the Democrats are going to say, and it is completely justified, ‘We tried, we did something, [but the conservative majority on the Court struck it down]. . .  “Then the Republican Party will own the health care system for the foreseeable future. And I really believe that.”

Other Democrats also see it as a political advantage, energizing their base to re-elect Obama and, equally important, increasing their numbers in Congress so that a better bill can be enacted.


Trayvon Martin #4

What happened the night of February 26th on that street in the gated community of Sanford, FL gets murkier and murkier.

We had the 911 recordings, which have dialogue between Zimmerman and the operator about a suspicious young man in a hoodie;  Zimmerman is told not to follow him but to wait for the police.   Then we had the story of Trayvon's girl friend, who was on the phone with him as the attack happened.  Phone company records confirm the connection between the two phones at that time up until 5 minutes before police arrived.   From her account, Trayvon was definitely not the aggressor but was worried about the man following him and trying to get away from him.

Now we have the testimony of Zimmerman's friend and his father with the story from Zimmerman that he was following Trayvon but lost sight of him.  As he was going to get back in his truck, Trayvon jumped him from behind and was beating him.  The father says he suffered a broken nose and that Trayvon was pounding Zimmerman's head against the pavement and threatening to kill him.   It was only then that he shot him to protect himself from being killed.

But there's a wrinkle here.     The police photos of Zimmerman being escorted into the police station in handcuffs show no evidence of cuts or bruises.  The photos are said to be clear and his face and head are visible.  And there is no visible blood on his clothing.

Further, the funeral director who handled Trayvon's funeral says there were no cuts or scratches on his hands that indicated he had been doing what Zimmerman claims.

That's the info available in the media as of now.   The arresting police report will be crucial here.  Did Zimmerman give the same story at that time?    Did they see evidence of a broken nose or cuts or bruises on his face and head?

Stay tuned.


Wednesday, March 28, 2012

Supreme Court hears arguments

Speculation and parsing of every question from the nine justices on the health care debate is running at fever pitch.   The consensus of news accounts seems to be surprise at how opposed the conservative justices were.

I've decided not to get into that and simply wait for their decision.   Despite the pessimism of liberal court watchers, we have to remember that their questions do not necessarily reflect what their decision is.  Sometimes they're playing devil's advocate to clarify the arguments.

The best chance seems to be that at least one of the conservatives will consider the enormity of the problem important enough to sway his decision -- i.e., the argument that the whole reform plan cannot work without the individual mandate to provide a larger pool of healthier people to offset the greater costs resulting from eliminating the pre-existing condition clause.

And either Kennedy or Roberts might do that.

There's also the possibility that others will be persuaded as they write and swap opinions among themselves.

So let's stay hopeful and wait.


Monday, March 26, 2012

"Individual mandate" was not always a dirty word

Reviewing the history of health care policy in the U. S. brings startling revelations in this day of demonizing anything-Obama as socialism, government control, and ergo bad, bad, bad.

Republican Theodore Roosevelt first proposed national health insurance in 1912 when running to regain the presidency.  He lost.

In 1932 a group of doctors, economists, and hospital administrators spent five years studying the problem of health care costs.   They issued a report saying that health care should be available to all.

In 1935 FDR wanted to create a national health insurance but decided to tackle Social Security first.    He was never able to get the health care initiative passed.

Because of the 1942 war time, emergency wage and price controls instituted by FDR, businesses were not able to compete for workers by offering higher pay.  Instead they offered health insurance as an inducement.   Thus began the employer-provided health insurance.

Truman tried to get a national health insurance program through Congress in the post-WWII period.  The AMA attacked it as "socialized medicine" and it failed to pass.

Medicare and Medicaid were signed into law by Lyndon Johnson in 1965.

In 1974, Nixon proposed a plan to cover all Americans through private insurance -- provided by employers or assisted by government subsidies for those would could not afford it.   Watergate pushed this plan aside.

Jimmy Carter in 1976 pushed for mandatory national health insurance as a presidential candidate, but the bad economy prevented any action on it after he became president.

Ronald Reagen signed the 1986 COBRA plan that guaranteed 18 months of continued coverage to workers who leave their jobs.

The conservative think tank Heritage Foundation originated the idea of the individual mandate in 1989.   In 1993 two different bills were introduced by prominent Republicans that contained an individual health insurance mandate.  Some of the Republican senators who sponsored those bills now oppose the individual mandate in ObamaCare.

In 1993 President Clinton put Hillary Clinton in charge of studying and proposing health care reform.  It met strong Republican opposition and divided Democrats who were under strong pressure from business and the health care insurance lobbyists.

In 2007 a bipartisan group introduced a bill that included an individual mandate.  It got nowhere

Obama and Congress spent an intense year ironing out compromises that culminated in the historic passage in 2010 of the Patient Protection and Affordable Care Act, which is now under such fierce demands for repeal by Republicans -- and even a Supreme Court hearing on the constitutionality of the individual mandate, with arguments before the court to begin today.

Indisputably, national health care coverage, and specifically the individual mandate, have had bipartisan support in the past.   What a shame that something so important has become a political wrangle and the subject of demonization by the demagogues


Sunday, March 25, 2012

Trayvon Martin #3

George Zimmerman, the neighborhood watch volunteer who shot Trayvon Martin, is described by his friend, Joe Oliver, as being filled with remorse.   After the incident, "George could not stop crying," Oliver said and added that he, as a black man and Zimmerman's friend, had never seen any reason to believe that he has anything against people of color."

That may well be.   It's good that he feels remorse.  But that does not change the fact that he took it upon himself -- in direct opposition to instructions from the 911 operator not to follow but to wait for the police -- to go after a young black man who "looked suspicious."

If we believe Trayvon's girl friend, who was on the phone with him at the time Zimmerman followed and then attacked him, Trayvon was frightened of this man following him and he only wanted to get away from him.   It doesn't matter whether he was black or white.   He still was shot by a man who jumped to wrong conclusions and took it upon himself to attack.

And of course it does also matter that he was a black youth in a hoodie because -- whether Zimmerman harbors racial prejudice or not -- he was suspicious of Trayvon because he is black and presumably did not "belong" in this neighborhood which has recently had several home break-ins -- presumably, and perhaps correctly, by young black men.

So Zimmerman's seeing Trayvon as "looking suspicious," as he told the 911 operator, was no doubt influenced by the fact that he was black.   It's still possible that he has no ill feelings toward blacks -- and still was stereotyping Trayvon because he is black.   Were the recent break-ins done by black men?   I don't know.   If they were, does this make Zimmerman a racist for suspecting a young black man?

Let's not let race cloud what is really a different issue here.  Black or white, brown or yellow, it was an unnecessary death caused by a (perhaps) well-meaning, but trigger-happy, vigilante.  

We do not need frontier justice here in modern, suburban America -- with police on the way.  No one was in immediate danger except Trayvon himself, being stalked by a man with a gun.  Zimmerman was in the wrong, and the tragic death of Trayvon should not have happened.  Zimmerman must be held accountable.


Newt is hardly even an afterthought now

Rick Santorum added an impressive win in Louisiana yesterday (49.0%) to his strong wins in Alabama and Mississippi.   Romney was a distant second at 26.7%, and Newt Gingrich an even more distant third at 15.9%.

Newt barely edged out Romney for second place in Alabama (29.3% and 20.%) and Mississippi (31.2% and 30.6%).

Just barely beating Romney for second place in two Southern states and losing to him in a third shows that Newt has not maintained much support across the South, despite his wins in South Carolina and Georgia.   They're ancient history by now, even though he got some delegates.  Sweeping the South was supposed to be Gingrich's road to the nomination -- and it just isn't happening.

Today's Atlanta Journal Constitution had a full page of articles on the GOP primary campaign:  "Broad support seen for Santorum in La," "Religious views resurge in politics," and "5 ways GOP could finally settle presidential race."

In all of this space on articles about where things stand, the name of Newt Gingrich is not even mentioned, not one time.   Not even a footnote.  It is especially significant that he is not even mentioned in the five ways the Republican nominee might be chosen -- not even as a spoiler.  It has truly become a two-man race.

This is going to strain even Newt's Big Brain Generator of Big Ideas to come up with a winning scenario and justification to continue.

It's beginning to become undeniably clear that Newt is still running because Newt just cannot acknowledge that he is not popular, that people are not buying his stuff -- and in the end he is becoming an embarrassment to himself.  Rather than helping to sell his DVDs and books, he's beginning to paint himself as the slightly ridiculous Don Quixote that he is.

"Cosmic ego" still says it best.