Sunday, June 28, 2015

The Monster Lives!

The Monster Lives! The Exquisite Politics of King v. Burwell

Everybody won.

I know, that’s a statement that, almost by definition, calls upon people who know me to question my sanity, but the Supreme Court has ruled, ACA has survived, and everyone has won.

Let’s take the most obvious winner.  Mr. Obama won big.  This is his healthcare plan, his two terms will largely be defined by it, it has single-handedly destroyed the Democratic majorities in the House and the Senate, it is deeply flawed, one can question his political judgment in pushing for it, and certainly his managerial competence in overseeing its execution, but there it is.  Obamacare is up and running, it has, regardless of whatever people say,  helped millions of people to gain coverage they otherwise couldn’t have, and, because of the multi-faceted way it interacts with patient needs, will help many millions more at different stages of their lives.  I am not going to say it is a positive good for everyone, or that I like it personally, but putting aside the apocalyptic end-of-civilization-as-we-know-it claptrap, it will be judged more kindly by history than its critics would acknowledge.

Republicans won as well:  There’s been a lot of talk about how good it will be for them to be able to run and raise money off of the continuing “offense against humanity” that ACA is, but I think that’s a lesser point.  The truth is they were frightened.  They dreaded the fallout, and the ads that would have run in 2016.   Should the Supreme Court have killed off the exchanges, millions of people would have lost coverage—and many of those millions happen to live in states that are run by Republicans. There were frantic behind-the-scenes discussions about how to bridge the gap long enough to get through the next election season, hoping to distract voters until they could repeal the entire thing in 2017.   But the legitimacy they thought they would gain by having a supportive conservative Supreme Court majority was probably ethereal.  The centrists and the unaligned public (and there is such a thing) clearly understood this was a political dispute being litigated in the courts.  Polling showed that the public did not like the ACA, but, by a very wide margin, did not want to see the Supreme Court effectively repeal it.

The GOP had another problem as well—one that is not fully understood by many Democrats and liberals. Not all conservatives are hard-hearted SOB’s who would personally pull the plug on a child with cancer and then rejoice as the family sobs.  It isn’t just the political fallout that worries many serious Republican lawmakers.  It is the actual impact of repeal.  This is both a practical concern (some GOP governors, including John Kasich of Ohio, have actually embraced certain aspects of ACA, albeit while decrying the entire law) and an intra-party one.  The fact is that there is no “replace” after “repeal” because the GOP cannot coalesce around a set of principles.  Many conservatives are philosophically opposed to any meaningful role of the government in healthcare, and saw King v. Burwell as a starting point toward dismantling the entire entitlement system—including not just Medicaid and SNAP, but also Social Security and Medicare.  A “replace” for that wing of the party would simply be a cap on malpractice awards, a reduction in the role for the FDA, and immunity for the medical device industry.  If you happen to be running a state (or representing one) and aren’t either running for President, or pine to be the next Sam Brownback, the thrilling theory of purity clashes with the reality of constituents dying for lack of access to a doctor.   The GOP must reconcile that, and the smart people there know it.  They need a plan, and this buys them time to come up with one.

Last, but not certainly least, the Supreme Court is probably a winner.  I have read a great deal of commentary about this from across the spectrum, but I suspect that the Chief Justice’s opinion, or, more importantly, his reason for deciding this way, has, at its core, a very important motive.  He doesn’t want to encourage chaos.  Ignoring legislative intent, which has long been a legitimate part of judicial analysis, will create a seismic shift in the way jurisprudence is conducted going forward. Roberts allows that the express language of the ACA contains several examples of poor drafting (and I think it’s amply clear, if he had been in Congress, he would never have voted for it.)  But, he says, despite all that “Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

Why? We know he doesn't like the law, and we know he was excoriated for his previous vote.   I am just speculating as to what was in Robert’s mind, but I have to think he at least considered the possibility that by discarding evidence of the intent of Congress in this case, he would open the floodgates of further litigation, not just on ACA, but on many statutes that had been on the books for decades.  Don’t like a law because of a policy dispute—hire someone to pour over every last word and clause and find something, anything, that you can take before a like-minded Federal Judge, and then you are off to the races.  I would also note that Justice Kennedy, who voted against the Individual Mandate in 2012, joined Roberts this time, and did so without filing a concurring opinion.  It seems that he, too, also agreed with the legislative intent analysis. 

So, here we are.  This isn’t over, by any stretch of the imagination.  GOP governors are still going to resist, the House and Senate are still going to try to repeal, and I expect there will be yet another threat of a government shutdown. And, if you can believe it, there is yet another ACA lawsuit, claiming the statute wasn’t properly enacted.  No lions hanging out with the lambs. 

And yet, I find myself oddly optimistic. ACA itself could also be a long-term winner.  It is a badly drafted law—as Justice Roberts noted quite forcefully.  It was largely written behind closed doors—like a lot of laws that get far less scrutiny.  It is clumsy, has internal contradictions, and needed some serious proofreading.  It desperately needs technical corrections. Republicans ought to get on board with this, sooner rather than later, and use the opportunity to introduce some of their own ideas, and show they know how to govern.  They won’t, at least not right now, because they need to vent some. 

So, I’m going to go out on a limb, and say that the two sides will, sooner or later, have to reconcile, and better legislation is possible.  I get this optimism from a strange direction—a story in the June 24, 2015 edition of The Hill.  It turns out that there is an Obama appointee that Republicans genuinely admire, a person who “could give lessons to the President on how to work with Congress” (Tom Cole (R-OK), head of the House Budget Committee).

That would be Secretary of Health and Human Services Sylvia Matthews Burwell.

The President seems to have picked a winner.

June 28th, 2015

Michael Liss (Moderate Moderator)

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Sunday, June 14, 2015

The Founders Find The Invisible Hand

There is a core incongruity at the center of the Constitution.  It might even be described as a core incompatibility. By every historical example available to the drafters at that time, it shouldn’t have worked.

Republics, to the extent they existed, had either grown large, autocratic, unwieldy, and then collapsed on themselves (like the Roman Republic), or remained small and un-influential, like the numerous Swiss Cantons, each of which had their own armies, border controls, and currencies.

In effect, Madison, on behalf of the Nationalists, was arguing three things, all of which were open to dispute.  The first was that the system created by the Articles wasn’t working, and the nation was the lesser for it. The second was the reason the Articles weren’t working was because of the weaknesses of the republican system: The “democratic” elements that existed in each state—local government, a state legislature, a chief executive, bred insularity and a tendency to be dominated by special interests.  Madison abhorred factionalism.  But the third was a peculiar elide.  The same system that did not work on the state level could and would work if applied nationally.  

This wasn't easily sold. There was obviously vigorous “political” opposition. The larger and more powerful states liked their heft, and the smaller ones liked their autonomy.  In their respective communities, within their fiefdoms, the new structure might have had some flaws (a bankrupt national treasury and unpaid soldiers came to mind) at a national level, but, at home, it looked pretty good. State government was certainly more representative and less dictatorial than a distant King, and it was unquestionably more representative of their interests.

But, even if one agreed, politically, with the first two of Madison’s points, where was the intellectual justification for the third? If each state was an example of a smaller form of republic, with an executive and a state legislature, and local municipalities, all tending to local interests, why wouldn’t that same lack of broader vision also apply to a Federal Government?  In fact, why wouldn’t a more powerful central structure amplify the very shortcomings Madison was critiquing—more factionalism, more pettiness? 

David Stewart, in his recent book, “Madison’s Gift” says Madison’s solution is “mechanistic, suitable to an age in which clockworks were a powerful metaphor.”  In effect, Madison would build a better mousetrap, where systemic checks and balances would create an environment of vigorous debate, followed by both consensus and decisiveness. 

Stewart’s formulation is in line with most contemporary evaluations—the Constitution as a marvelous and enduring machine, begun as a contract, or better yet, a compact, between consenting adults, self-correcting and perfect.  As a lawyer, it appeals to my sense of order and of bilateral obligations. 

But, I don’t find it fully satisfying.  Madison was too intelligent to believe that the small state government model was fully scalable.  First, to create a muscular new nation, you needed muscle at the top.  That involved an element of coercion—not as much as his fellow author of the Federalist Papers, Hamilton, wanted, but nevertheless, someone, or some body, had, at certain times, to be King. You could devise a system where the respective parts of government could review each others’ actions, and even reverse them (the power of the purse, Judicial Review, the veto, veto-override, etc.) but that process had to have limits.  There had to be finality.

Second, I doubt Madison trusted men enough to think any system he or anyone else devised would always be up to the task.  The very things Madison worried about— "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time" (Federalist 10)  are not fully resolved by his schematic, and he had to have realized that.  His own “first draft”, the Virginia Proposal, which presumably reflected his true desires, was far more top-heavy than what was ultimately adopted.  And, he initially opposed the Bill of Rights, switching sides after he saw it as a political necessity, not necessarily a philosophical one.

Madison may have been influenced by Adam Smith’s The Wealth of Nations, adapting Smith’s idea of a self-regulating economic marketplace to the possibility of creating a political one.  In this construct, Madison would have agreed with Smith’s idea "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest” and would have applied it to government.  Think of it as type of embryonic rational choice theory, where the aggregate political behavior as expressed through the actions of government reflects the sum of the choices made by elected representatives. They, in turn, are directed by the preferences or restrictions of the people who sent them there.  Thus, the sum, if properly channeled (through Stewart’s grandfather’s clock?) must reflect consensus and compromise.

Joseph Ellis, in The Quartet doesn’t buy the Adam Smith analogy.  By 1787, he feels, the drafting of the Constitution is beyond heavy philosophizing and into practical politics.  Madison was acting as a skilled political partisan doing what he had to do to get the legislation he wanted.  And what he wanted was a strong central government—certainly a lot stronger than the Articles provided.  If he had to compromise at the margins to do it, that was irrelevant to the larger goals. 

I think Ellis discards the idea a little too quickly, maybe because I prefer to romanticize the situation just a bit.  The Constitution was carefully thought out, and argued, and intensively negotiated. It has compromise written all over it. It might have been the best deal Madison, Hamilton, Washington, Jay and the Nationalists could have struck, but I don’t think Madison signed on to it just because it was a deal.  I think he needed something more—some confidence that the apparent incongruity of arguing that something he himself said had failed at the state level would work the national one was not really incongruous.  He didn't want his baby to fail.   

That confidence, I suggest, came from the negotiating process itself.  Remember, what was going on here was basically unprecedented.  A free people were setting the terms upon which they would agree to limit their freedoms.  The fact that they could do such a momentous thing implied that, perhaps, rational actors could look for profit and loss in a political context.  Put in the worst possible light, even if the negotiators may have come into the room looking solely for their own benefit, "by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention."

What shouldn’t have worked, quite miraculously, did.  We are still around, kicking, screaming, elbowing, and looking for every last bit of personal and political profit.  Perhaps that’s because we expect that our market, sooner or later, will self-correct, and the monopolists, the price-gougers, the purveyors of inferior and outdated products will be shown the door.

Well, at least that’s the theory.   We can discuss this again next November. 

June 14, 2015

Michael Liss (Moderate Moderator)

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Thursday, June 4, 2015

Founding Fallacy

Founding Fallacy

In 1787, a tall, strongly-built man with powered white hair, in period dress, descended from a hill in Philadelphia, and, in a voice that sounded remarkably like Charlton Heston’s, handed down two tablets containing the Constitution and the Bill of Rights. The multitudes cheered; many fell to their knees in awe and gratitude.  Timeless words, hewed in stone, expressing all the accumulated wisdom and truth, for all eternity. 

You have to admit, it would make a great movie. 

One of the peculiarities of the way we think about our history is our conflation of the drafting and signing of the Declaration of Independence, and adoption of the Constitution.  It’s actually the Declaration that inspired a film—a musical, no less.  After much singing and dancing, it’s July 4th, 1776 (actually, July 2nd but dramatic liscence) and there they all are, in the Trumbull painting, stout of character and resolute.  Tallest amongst them is Jefferson, author of the powerful words “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

I love that image.  I know what preceded it was a year of listless and pointless debate, as George Washington’s Army, under-funded and under-supplied, did its best to stave off crushing defeat.  I know there was very substantial opposition to the idea of independence from many of the people in that room, and they mirrored the doubts of the population at large. John Adams was obnoxious and disliked, it cannot be denied.  And I know that the moment itself would not have been possible without a shameful tabling of the issue of slavery.  

But still, it seems to belong to me—and even the reason my grandparents crossed the ocean a century ago to come here—the singular moment in time when “We” stopped being subjects of a distant King and became possessed of unalienable rights.  It is the moment when we owned our own destinies.  Jefferson’s words are simplicity itself, and immutable. From this date henceforth, we are free. They marked an ending, and a beginning.

That is not what occurred with the adoption of the Constitution.  The Constitution is an acknowledgement of the limits of freedom.  What Washington, and Madison, Hamilton, and Jay understood was that the right to say no to everything, to go your own way on all points, to always be governed by your personal self-interest, whether the “you” was a person, a town, or a state, was incompatible with the growth of a nation. To the contrary, they believed that the 13 original states inability to act in concert created an existential risk to the very idea of freedom itself.   The British surrender at Yorktown and Treaty of Paris notwithstanding, the Brits really weren’t going away, and the rest of Europe took little note of us.  This had to be fixed.

So, if the Declaration was a glorious Big Bang, the Constitution began the organization of the galaxies, solar systems, and planets.  

That one step—organization out of disorder, meant, by definition, that a lot of power was passing from one set of hands to the other.  Every signer of the Constitution had lived under a monarchy, and the monarchy could act decisively without additional consent.  The act of political regicide that was the Declaration released those restrictions and dissipated that power.  Now, the people who came to be called Nationalists (and later, Federalists) were proposing to reconstitute that power, only in a form that was more representative.

That leads us back to the fallacy—that the Constitution is a perfect document, that it fully and unanimously expressed the hopes, aspirations, and desires of those higher order of beings, The Founders, and the text is to be read as one would read the Ten Commandments—handed down from on high.

From that fallacy comes a certain political fraud—the fraud that, if only we could enter the spirit world for a moment, tap Madison on the shoulder and ask him about a contemporary political issue, he would immediately be able to give us a response that exactly aligned with our personal desires.   

It is a huge fraud on many levels.  To start with, there was no unanimous adoption, no glorious embrace of a core principle like independence. The Constitution represents gigantic compromises between the people and states that had power and were asked to cede some of it to a national government, and those that had less power and wanted more.  Few people gave up some of the new freedoms they had just gained without dissent, and fewer without getting something.  The ratification battles on a state by state basis show it.  The two most powerful states, Virginia and New York, barely voted in the affirmative, and most historians agreed that the resistance shown by representatives of those states reflected the opinions of their population.

The differences were stark.  Independence was aspirational in nature.  The Constitution was as practical as plumbing.  Even if you could consult Madison as a Spirit Guide, the Constitution didn’t fully represent his ideas either.  Review the Virginia Plan (drafted by Madison and presumably expressing what he really wanted) and compare it to the final text of the Constitution—the differences are considerable—the shape of the legislature, the formula for representation, the method of selecting a President and the authority of the Executive Branch.  Madison himself opposed the Bill of Rights, until he decided, as a political expedient, that he needed it to gain ratification, and then he drafted it (leaving out some things he personally, opposed.)  If you asked Jefferson the exact same question, he would have said he never expected the agreement to last more than fifteen or twenty years.  His vision was of an agrarian republic, dominated by educated planters who played the violin.

What the Constitution really is—is a contract, a balance between competing interests.  Contracts are written by lawyers, and with all due respect to my profession, if you ask a lawyer what he meant by a certain phrase or clause, he will very likely remember it in the way that is most advantageous to him and his client.  In anything but the clearest text, the idea that anyone, including an Originalist, can tell you what the Founders meant by a certain phrase, is an inherently biased exercise.  They will look only at the evidence that supports their position.

The next time you see some political candidate or talking head expound on what’s Constitutional, or tell you they just had lunch with Alexander Hamilton….take it with a grain of salt, and remember Ronald Reagan’s quip, “It has been said that politics is the second oldest profession. I have learned that it bears a striking resemblance to the first.”

That’s no fallacy
June 4, 2015

Michael Liss (Moderate Moderator)

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