Anytime that Congress passes a bill with a cute acronym, you should be very suspicious. ~ Chris Hayes
Last week Congress passed the Jump Start Our Business Startups Act (pdf), the JOBS Act, which is set to be signed into law with much fanfare by President Obama despite the fact that it will in all probability create an explosion of financial fraud. The act rolls back many of the regulations that were passed under Sarbanes-Oxley in 2002. Professor of economics and law at the University of Missouri-Kansas City, Bill Black wrote an outstanding article for the New Economic Perspectives that was cross posted at naked capitalism, explaining with clarity how the jumpstart Obama’s Bucket Shops Act is just another in a long series of fraud-promoting legislation. He closed with this analysis:
We have trashed a regulatory system that was the envy of the world. It helped bring us prosperity, far greater economic stability, fewer and less severe recessions, and reduced income inequality. It made freer enterprise possible because the regulatory cops on the beat helped limit the Gresham’s dynamic in which bad ethics drives good ethics out of the marketplace. When frauds prosper honest businesses are among the victims. The three de’s have brought us recurrent, intensifying financial crises, the end of any material gains by the middle class, losses for the working class, the expansion of poverty and extreme inequality, and the domination of our political system by crony capitalism. Elite fraud and corruption are now common in America.
The entire article is a must read.
During a panel discussion on Up with Chris Hayes, Prof. Black and Alexis Goldstein of Occupy the SEC “educated” Democratic Representative Carolyn Maloney, who represents the the Upper East Side constituency of top Wall Street earners, on just how bad this bill is. As Yves Smith observes, “it is pretty hard to imagine that Carolyn Maloney would do anything that would seriously inconvenience her constituency”:
You need to watch the full segment to get the effect, but Maloney starts out by saying that the JOBS Act probably won’t create many jobs, but she was nevertheless getting complaints about how costly it was for “small” businesses to hire auditors (earth to base, if they are public, they would not qualify as “small” in most people’s book). Goldsmith devastates Maloney with her command of the bill, pointing out that it covers companies of up to $1 billion in revenues, that the tech companies its backers keep invoking have VC firms ready and willing to invest, and the new format well be used by PE firms flipping companies they had taken private back to public investors. By the end, Maloney is telling Goldsmith to send her suggestions for improved legislation and she’ll put it forward (I’ll believe her sincerity when I see action).
Yves is right, Alexis shreds Carolyn. Watch this segment, it is a thing of beauty.
Prof. Black also explains “stump & dump” scams and “cloud financing” that can cause devastating losses and won’t create any jobs.
It would seem that there really are rational Republicans in elective office. Thank you to Louisiana Attorney General Buddy Caldwell who recognized that the Patient Protection and Affordable Care Act neither protects the patient or makes health care affordable. The only thing that will do that is single payer and that isn’t in the bill. Single payer health care spreads the cost of health care across the spectrum, covering everyone, and insures access to care from birth to death. So, AG Caldwell is suing the Obama Administration because he trusts the government more than the greedy, profit driven insurance companies.
ThinkProgress spoke with Louisiana Attorney General Buddy Caldwell outside the Supreme Court on Wednesday. Caldwell opposes Obamacare and the individual mandate, but for a different reason than most of his fellow litigants: it props up the private health insurance industry. “Insurance companies are the absolute worst people to handle this kind of business,” he declared. “I trust the government more than insurance companies.” Caldwell went on to endorse the idea of a single-payer health care system, saying it’d “be a whole lot better” than Obamacare:
KEYES: You don’t think the subsidies for low-income people are going to be helpful?
CALDWELL: No, no. The worst thing you can do is give it to an insurance company. I want to make my point. All insurance companies are controlled in their particular state. If you have a hurricane come up the east coast, the first one that’s going to leave you when they gotta pay too many claims is an insurance company. Insurance companies are the absolute worst people to handle this kind of business. I trust the government more than insurance companies. If the government wants to put forth a policy where they will pay for everything and you won’t have to go through an insurance policy, that’d be a whole lot better.
I don’t know about the rest of Mr. Caldwell’s politics but I wish there was a Democrat in the White House that agreed with him on this.
“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.
Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.
The big bad event of last week was, of course, the Supreme Court hearing on health reform. In the course of that hearing it became clear that several of the justices, and possibly a majority, are political creatures pure and simple, willing to embrace any argument, no matter how absurd, that serves the interests of Team Republican.
But we should not allow events in the court to completely overshadow another, almost equally disturbing spectacle. For on Thursday Republicans in the House of Representatives passed what was surely the most fraudulent budget in American history.
Don’t they ever learn? Large bipartisan majorities in the House and Senate have now passed the deeply flawed JOBS Act and President Obama is expected to sign it soon. The full name is equally seductive: Jump-start Our Business Start-ups Act. What it is is an invitation to a fresh round of financial malfeasance. It rolls back important investor safeguards from the post-Enron Sarbanes-Oxley law and the post-financial crisis Dodd-Frank law.
The official justification for the legislation – debunked in expert testimony – is that rules on disclosure, accounting and auditing make it unduly difficult for new companies to raise money by issuing stock. The real driving force behind the bill is the eagerness of politicians in both parties to please bankers and business executives who relentlessly demand deregulation and have the deep pockets to get their way, especially in an election year.
Luxury retailers are smiling. So are the owners of high-end restaurants, sellers of upscale cars, vacation planners, financial advisors, and personal coaches. For them and their customers and clients the recession is over. The recovery is now full speed.
But the rest of America isn’t enjoying an economic recovery. It’s still sick. Many Americans remain in critical condition.
The Commerce Department reported Thursday that the economy grew at a 3 percent annual rate last quarter (far better than the measly 1.8 percent third quarter growth). Personal income also jumped. Americans raked in over $13 trillion, $3.3 billion more than previously thought.
The security and surveillance state does not deal in nuance or ambiguity. Its millions of agents, intelligence gatherers, spies, clandestine operatives, analysts and armed paramilitary units live in a binary world of opposites, of good and evil, black and white, opponent and ally. There is nothing between. You are for us or against us. You are a patriot or an enemy of freedom. You either embrace the crusade to physically eradicate evildoers from the face of the Earth or you are an Islamic terrorist, a collaborator or an unwitting tool of terrorists. And now that we have created this monster it will be difficult, perhaps impossible, to free ourselves from it. Our 16 national intelligence agencies and army of private contractors feed on paranoia, rumor, rampant careerism, demonization of critical free speech and often invented narratives. They justify their existence, and their consuming of vast governmental resources, by turning even the banal and the mundane into a potential threat. And by the time they finish, the nation will be a gulag.
Right before our eyes, American conservatism is becoming something very different from what it once was. Yet this transformation is happening by stealth because moderates are too afraid to acknowledge what all their senses tell them.
Last week’s Supreme Court oral arguments on health care were the most dramatic example of how radical tea partyism has displaced mainstream conservative thinking. It’s not just that the law’s individual mandate was, until very recently, a conservative idea. Even conservative legal analysts were insisting it was impossible to imagine the court declaring the health care mandate unconstitutional, given its past decisions.
What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court’s majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?
Something very much like that could be happening if the Supreme Court’s five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution’s key Commerce Clause and thus reshaping America’s system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.
How Big Energy Companies Plan to Turn the United States into a Third-World Petro-State
The “curse” of oil wealth is a well-known phenomenon in Third World petro-states where millions of lives are wasted in poverty and the environment is ravaged, while tiny elites rake in the energy dollars and corruption rules the land. Recently, North America has been repeatedly hailed as the planet’s twenty-first-century “new Saudi Arabia” for “tough energy” — deep-sea oil, Canadian tar sands, and fracked oil and natural gas. But here’s a question no one considers: Will the oil curse become as familiar on this continent in the wake of a new American energy rush as it is in Africa and elsewhere? Will North America, that is, become not just the next boom continent for energy bonanzas, but a new energy Third World?
A few days ago the Salt Lake Tribune’s front page headline declared, “Highest rate in the nation, 1 in 32 Utah boys has autism.” This is a national public health emergency, whose epicenter is Utah, Gov. Herbert. A more obscure story on the same day read: “New pesticides linked to bee population collapse.” If you eat food, and hope to do so in the future, this is another national emergency, Pres. Obama. A common denominator may underlie both headlines. [..]
How does this relate to vanishing bees and our food supply? Two new studies, published simultaneously in the journal Science, show that the rapid rise in use of insecticides is likely responsible for the mass disappearance of bee populations. The world’s food chain hangs in the balance because 90% of native plants require pollinators to survive.
Yesterday was the last day of Women’s History Month and Melissa Harris Perry hosted a all female panel to discuss women in leadership roles and how different would the world really be. Ms. Perry was joined by Frances Fox Piven, professor of political science and sociology at the Graduate Center in the City University of New York; Mona Eltahawy, New York-based columnist and international public speaker on Arab and Muslim issues; and Jessica Valenti, founder of Feministing.com, author of several books, and newly-announced contributor and blogger for The Nation.
“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.
Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.
Rep. Carolyn Maloney (D-NY) (@carolynbmaloney), chair of the Joint Economic Committee; Alexis Goldstein (@alexisgoldstein), member of Occupy the SEC and former Wall Street information technologist; Kai Wright (@kai_wright), editorial director of Colorlines.com and an Alfred Knobler Fellow of The Nation Institute; Karen Ho, author of Liquidated: An Ethnography of Wall Street and associate professor of anthropology at the University of Minnesota; John McWhorter, Columbia University professor of linguistic and American studies and contributing editor at the New Republic and TheRoot.com; William Black (@williamkblack), associate professor of economics & law at University of Missouri – Kansas City and author of The Best Way to Rob a Bank Is to Own One; and Richard Benjamin, senior fellow at Demos and author of Searching for Whitopia: An Improbable Journey to the Heart of White America.
This Week with George Stephanopolis: Rep. Paul Ryan (R-WI), and Rep. Chris Van Hollen (D-MD), who will debate health care, the budget, and the 2012 presidential race.
The roundtable guests are George Will, conservative commentator Ann Coulter, former White House environmental advisor Van Jones, author of “Rebuild the Dream,” Matt Bai of The New York Times Magazine, and “Nightline” co-anchor Terry Moran.
Mr Schieffer’s guests are Vice President Joe Biden; GOP presidential candidates Newt Gingrich and Ron Paul; and Romney campaign adviser Kevin Madden. CBS News political correspondent Jan Crawford and political director John Dickerson, along with PBS NewsHour and Washington Week’s anchor Gwen Ifill, will discuss the 2012 presidential race and the Supreme Court’s hearings on the Affordable Care Act.
The Chris Matthews Show: This week’s guests are Dan Rather, HDNet Global Correspondent; , NBC News Justice Correspondent; Nia-Malika Henderson, The Washington Post National Political Reporter; and Kathleen Parker, The Washington Post columnist.
Meet the Press with David Gregory: Mr. Gregory’s will ave interviews with GOP presidential candidate Rick Santorum and Sen. Charles Schumer (D-NY).
The roundtable guests are Tom Friedman and David Brooks of the New York Times, Fmr. Newsweek Executive Editor Jon Meacham, Fmr. Rep. Harold Ford (D-TN) and MSNBC’s Mika Brzezinski.
State of the Union with Candy Crowley: Ms. Crowley will have interviews with Senate Minority leader Mitch McConnell (R-KY); Rep. Paul Ryan (R-WI); House Intel Chair Mike Rogers (R- MI) and Ranking Member C.A. Ruppersberger (D-MD); and round table political discussion with the New York Times‘ Jeff Zeleny and CNN Sr. Congressional Correspondent Dana Bash.
“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.
Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.
Nobody knows what the Supreme Court will decide with regard to the Affordable Care Act. But, after this week’s hearings, it seems quite possible that the court will strike down the “mandate” – the requirement that individuals purchase health insurance – and maybe the whole law. Removing the mandate would make the law much less workable, while striking down the whole thing would mean denying health coverage to 30 million or more Americans.
Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.
President Obama and the Senate Democrats have again fallen short in their quest to eliminate billions of dollars in unnecessary tax breaks for an oil industry that is rolling in enormous profits. A big reason for that failure is that some of those profits are being continuously recycled to win the support of pliable legislators, underwrite misleading advertising campaigns and advance an energy policy defined solely by more oil and gas production.
Despite pleading by Mr. Obama, the Senate on Thursday could not produce the 60 votes necessary to pass a bill eliminating $2.5 billion a year of these subsidies. This is a minuscule amount for an industry whose top three companies in the United States alone earned more than $80 billion in profits last year. Nevertheless, in the days leading up to the vote, the American Petroleum Institute spent several million dollars on an ad campaign calling the bill “another bad idea from Washington – higher taxes that could lead to higher prices.”
On March 31 the current funding for the nation’s authority to spend money on our transportation needs will run out. This means major roadway and transit improvement projects will be stalled for the foreseeable future and billions of dollars in potential job-creation will be jeopardized, according to transportation officials. Republicans, obsessed with their anti-government ideology, can’t even agree among themselves, and it is costing everyone else. Sadly, it ain’t the first time.
The Republican leadership could have decided to take up Senate legislation which would extend transportation funding for two years. Instead, the House had planned to consider a three-month extension that transportation advocates say could endanger capital improvement programs because transportation agencies won’t be able to plan lo ng-term budgets. As of Wednesday morning they were no closer to a solution.
Since the attacks on Sept. 11, 2001, genuine concerns about national security as well as politicking and fear have led to a shift in the balance between civil liberties and law enforcement. That much is indisputable, and widely discussed. Yet it’s rarely acknowledged that the attacks have also led to what’s essentially a separate justice system for Muslims.
In this system, the principle of due process is twisted and selectively applied, if it is applied at all.
Examples of the Muslims-only legal system abound, even though politicians and the press shy away from calling it that: Special detention centers for Muslims (Guantanamo Bay and the network of secret C.I.A. lockups, now said to be closed, where prisoners were almost routinely tortured); special trial procedures for Muslim prisoners (military tribunals); special allowances for agents dealing with Muslim suspects (extraordinary rendition, i.e. officially sanctioned kidnapping of foreigners).
The killing of Florida teenager Trayvon Martin has raised old concerns about everything from racial profiling to gun violence. That’s frustrating, as so many Americans had hoped that their country might have bent the arc of history a bit more toward progress.
But the shooting in Sanford, Florida, has done something else. It has focused new attention on the structural supports for legislating on behalf of special-interest, and on the way in which the American Legislative Exchange Council turns bad ideas into bad law.
That has created a new clarity with regard to the need for a pushback against ALEC and its corporate sponsors. And that clarity has renewed a civil rights coalition that will be needed if there is to be any hope for breaking the grip of one-size-fits-all lawmaking and renewing small “d” democracy and sound governance in the states.
In arguments before the Supreme Court this week, the Obama administration might have done just enough to keep the Affordable Care Act from being ruled unconstitutional. Those who believe in limited government had better hope so, at least.
If Obamacare is struck down, the short-term implications are uncertain. Conservatives may be buoyed by an election-year victory; progressives may be energized by a ruling that looks more political than substantive. The long-term consequences, however, are obvious: Sooner or later, a much more far-reaching overhaul of the health care system will be inevitable.
House Budget Committee Chairman Paul Ryan (R-Wis.) expressed skepticism Thursday that U.S. military leaders were being honest in their budget requests to Congress.
“We don’t think the generals are giving us their true advice,” Ryan said during a forum on the budget sponsored by the National Journal. “We don’t think the generals believe their budget is really the right budget….
He went on to say that while there were certainly inefficiencies that could be reduced in the Pentagon’s budget, fighting wars in the Middle East and a “dangerous world” necessitated keeping defense spending level.
The comments were in response to a question from National Journal managing editor Kristin Roberts, who asked Ryan why the committee chose “to go against the advice of the generals” in rolling back $487 billion in proposed cuts to the Pentagon’s budget over the next decade.
After Ryan’s initial remarks, Roberts noted that the budget was something that came from the Defense Department itself, not the Obama administration.
“You don’t believe the generals?” Roberts asked.
“What I believe is this budget does hollow out defense,” Ryan responded. “I believe this budget goes beyond where we should go to keep people safe.”
So this “genius” budgeter, whose party is always happy to defer to the generals when the generals say what they want to hear, is putting a couple of stars on his shoulder and dictating what the Pentagon needs to “keep people safe.” That’s particularly amazing since General Ryan is under fire from every direction for failing to offer a credible plan to reach his own arbitrary deficit reduction targets.
The Generals apparently did not take too kindly to Ryan calling them liars. This was Joint Chiefs of Staff Chairman Martin Dempsey response:
“There’s a difference between having someone say they don’t believe what you said versus … calling us, collectively, liars,” he said, according to the Wall Street Journal. “My response is: I stand by my testimony. This was very much a strategy-driven process to which we mapped the budget.”
Dempsey added that the budget “was a collaborative effort” among top military officers and combat leaders.
The military faces $487 billion in cuts in the next decade as part of a budget deal reached last summer. The cuts reflect ongoing drawdowns in Iraq and Afghanistan.
The rest, unfortunately, is behind the Wall Street Journal‘s firewall.
Now, keep in mind that the Obama Administration’s “cuts” to the military budget aren’t cuts. They just slow growth over time. And the Pentagon doesn’t even contemplate the mandated trigger cuts that are coming at the end of the year, which fall in large part on the defense budget. [..]
The proof that the military budgeting represented a collaborative effort, of course, is that it doesn’t cut the military budget all that much.
But it’s worth re-emphasizing that Paul Ryan called the entire military brass a bunch of liars who gave false testimony to Congress. And he will not listen to their calls for even modest trims to their funding. This makes him the very serious budget hawk in Washington.
Man the torpedoes! Full speed ahead! And damn the consequences.
While everyone has been focused on the Supreme Court hearings over the constitutionality of the individual mandate of the Patient Protection Affordable Care Act and the tragic murder of a black teenage boy in Florida by a “gun toting vigilante”, the Republican held House of Representatives has been up to its usual shenanigans threatening not only to shut down any infrastructure construction but now planning to shut down the government entirely. Even though they have vowed to defeat the current resident of the Oval Office, knowing they have a “friend”, the Republicans continue to make themselves more unpopular with the majority of their own constituents. This is what they have been up to while the traditional media focused on SCOTUS and a possible racially motivated murder:
The House voted down the proposed White House budget by a vote of 0 – 414. I suppose one could call that “bipartisan.” Nust up was the annual ritual of the Black Caucus Budget which failed but at least managed to garner 107 votes. Then they rejected the “Bowles-Simpson” Budget proposal, which really wasn’t, giving it only 38 votes.
He again proposes tax cuts for the rich at the expense of seniors, the disabled, and children. He would cut taxes by roughly $3 trillion $4.6 trillion (according to a Tax Policy Center analysis just put out), with most of the tax cuts going to people earning more than $200,000. His proposed cuts to Medicare, Medicaid, and food assistance would all fall heavily on seniors, the disabled, and children. Ryan’s budget is doubly bad for children because his proposed cuts to public investments (mostly infrastructure and education) would cause children to inherit a country with crumbling roads and bridges and to enter the labor market with fewer skills.
Because it doles out trillions of dollars in tax cuts to the rich and corporations, the budget approved by House Republicans today – authored by Budget Committee Chairman Paul Ryan (R-WI) – would increase deficits and drive up the national debt. In fact, under the plan, “deficits would never drop below 4.4 percent of GDP, and would rise to more than 5 percent of GDP by 2022.”
Those increases would come despite the gigantic spending cuts that Ryan has in mind, which would eviscerate the social safety net and non-defense discretionary spending (even while the budget increases defense spending). As the Economic Policy Institute noted today, the plan Republicans adopted would drive discretionary spending down to its lowest level in more than 50 years.
Click on image to enlarge
The House also refused to pass the very bipartisan Senate Transportation bill managing only to pass a stop gap 90 day bill to fund current transportation and construction projects:
Despite several efforts to advance a bipartisan Senate bill championed by (Sen. Barbara) Boxer, House leaders opted for a three-month extension while they try to break a deadlock that has stalled their own proposal to fund transportation by expanding offshore oil drilling.
The extension leaves transportation financing in an increasingly precarious position.
“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.
Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.
The ideological nature of the health care case was obvious on the last day of oral argument. By the time the proceedings were over, much of what the conservative justices said in court seemed like part of a politically driven exercise – especially because the issues addressed on Wednesday were not largely constitutional in nature. In fact, they were the kinds of policy questions that are properly left to Congress and state governments to answer, not the Supreme Court.
On Wednesday morning, the court heard arguments on the issue of “severability” – the question of what should happen with the rest of the 2,700-page statute if the requirement that most Americans obtain health insurance is struck down. The insurance mandate was effectively reduced to a bumper sticker by the opponents in their constitutional challenge, and the entire law reduced to little more than an appendage to the mandate.
The Supreme Court is so full of it. The entire institution, as well as its sanctimonious judges themselves, reeks of a time-honored hypocrisy steeped in the arrogance that justice is served by unaccountable elitism.
My problem is not with the Republicans who dominate the court questioning the obviously flawed individual mandate for the purchasing of private-sector health insurance but rather with their zeal to limit federal power only when it threatens to help the most vulnerable. The laughter noted in the court transcription that greeted the prospect of millions of the uninsured suddenly being deprived of already extended protection under the now threatened law was unconscionable. The Republican justices seem determined to strike down not only the mandate but also the entire package of accompanying health care rights because of the likelihood that, without an individual mandate, tax revenue will be needed to extend insurance coverage to those who cannot afford it.
The parents of Trayvon Martin attended a somber, angry forum on Capitol Hill yesterday about racial profiling and discriminatory stand-your-ground laws. Much of that terrain has been well-covered in recent weeks, but an interesting portion of the hearing focused directly on gun control-and how Florida’s loose gun restrictions helped facilitate George Zimmerman’s vigilantism.
Despite having an arrest record and a history of violence, Zimmerman was allowed to purchase a gun and obtain a concealed carry permit. And even if he were to be arrested tomorrow and charged with murder, he would still likely be able to obtain a gun permit the day he eventually walked out of prison.
In Florida, gun permits are issued by the Department of Agriculture. All one has to do is visit their website-FreshFromFlorida.com-and apply. Providing your Social Security number is optional, and they’ll just mail you a permit-no need to actually see anyone or provide identification. The state does not have the right to take away your concealed carry permit if you commit a crime-1,400 convicted felons, at least, are said to have concealed carry permits in Florida today, though it’s hard to know for sure since the state doesn’t make the permit list public.
For decades now, the National Rifle Association has used Florida as a petri dish for extreme measures that make getting firearms easy-and the state has some of the loosest laws in the country.
Three days of Supreme Court arguments over the health care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals-the so-called “judicial activists,” remember?-to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
The debate over the shooting death of Trayvon Martin seems to be devolving into an argument about the right to wear hoodies, but it really does not appear to be a promising development.
Congress, which never draws any serious conclusions from terrible tragedies involving gunplay, did have time on Wednesday to fight about whether Representative Bobby Rush of Chicago violated the House dress code when he took off his suit jacket, revealing a gray sweater he was wearing underneath, and pulled the hood up over his head.
You may remember that Geraldo Rivera took measure of the Martin case and determined that the moral was: young men, throw out your hoodies. Even Rivera’s son said he was embarrassed. But, hey, we’re talking about it. Mission accomplished.
Despite significant negative signals, the final outcome of this week’s arguments over the Affordable Care Act will remain unknown until the Supreme Court issues a ruling in June. What is painfully obvious today, however, should have been clear enough long before any of the lawyers opened their mouths. The five Republican justices represent an ideological bloc as adamantly hostile to universal health care-no matter the cost in lost lives or squandered trillions-as in 1965, when Medicare passed.
If the high court voids the law’s insurance mandate (once promoted by the same politicians and policymakers who now scorn it), we know how tea party Republicans would cope with the financial problem posed by ill and injured people who show up at hospitals without coverage. They told us last fall during the presidential debate in Tampa, Fla., when they cheered for, “Let him die!”
There was terror in the skies this week over Texas, caused not by a terrorist but by a pilot-a Flight Standards captain, no less. JetBlue Airways Capt. Clay Osbon, flying Flight 191 from New York’s John F. Kennedy International Airport to Las Vegas, began moving up and down the aisle after the jet was airborne, ranting, according to several passengers, about Iraq, Israel, al-Qaida and bombs, calling on passengers to recite the Lord’s Prayer, saying that they were “all going down.” An off-duty pilot in the cabin went to the cockpit to help the co-pilot with the emergency landing, while passengers and crew subdued Osbon. Osbon, who’d been with JetBlue almost since its founding, was taken to the hospital, suspended with pay, then criminally charged with interfering with a flight crew.
That’s enough to inspire a fear of flying in anyone. But just getting to your airplane these days may present a greater risk to your health than the actual flight.
The day after the Supreme Court suggested that President Obama’s health care law might be in danger of being held unconstitutional, the justices on Wednesday turned their attention to the practical consequences and political realities of such a ruling.
The justices seemed divided on both questions before them: What should happen to the rest of the law if the court strikes down its core provision? And was the law’s expansion of the Medicaid program constitutional?
The two arguments, over almost three hours, were by turns grave and giddy. They were also relentlessly pragmatic. The justices considered what sort of tasks it makes sense to assign to Congress, what kinds of interaction between federal and state officials are permissible and even the political character of the lawsuits challenging the law. One justice dipped into Senate vote counting.
The court had in other words, on the third and final day of a historic set of arguments, moved from the high theory of constitutional interpretation to the real-world consequences of what various rulings would entail.
The arguments on severability, which hinged totally on whether the mandated stays or goes, boiled down to three points:
1. sever only the mandate, allow the rest of the law to stand and let Congress sort it out;
2. sever the mandate along with insurance regulations like guaranteed issue and community rating, to prevent what the government argues would be an insurance death spiral;
3. or throw out the whole law, which did not include a standard severability clause.
[..] A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia – first, that it “can’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” [..]
Justice Anthony Kennedy, who is considered the swing vote on the individual mandate, expressed concern “possible unintended consequences in the form of huge costs to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – was invalidated alone”:
“We would be exercising the judicial power if one … provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “By reason of this court, we would have a new regime that Congress did not provide for, did not consider.”
The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.
Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?”
Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. “Why make Congress redo those?”
The court’s more liberal justices all expressed puzzlement about why there should be a problem with the expansion in light of the fact that it is almost entirely to be paid for by the federal government. The states say they are being coerced into participating because a decision not to may cause them to lose not only the new money but also existing funds.
Justice Elena Kagan described a hypothetical program only slightly different from the real one. “It’s just a boatload of federal money for you to take and spend on poor people’s health care,” she said to a lawyer for the states, Paul D. Clement. “It doesn’t sound coercive to me, I have to tell you.” [..]
He (Chief Justice John G. Roberts Jr) said the court’s decision on the Medicaid expansion should be informed by the reality that the states have “since the New Deal” cheerfully accepted federal money.
“It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done,” the chief justice said.
Justice (Antonin) Scalia addressed the political realities of the litigation itself, asking Mr. Clement whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?”
Mr. Clement responded, “There’s a correlation, Justice Scalia.”
Amid all the three-day psychodrama, it’s easy to get confused about what’s happened and what hasn’t. Court watchers seem to generally agree that the individual mandate is in real peril and will rise or fall with Chief Justice Roberts and Justice Kennedy. Court watchers also agree that 19th-century tax law-while generally adorable-will not prevent the justices from deciding the case by July. And they also agree that they may have counted five justices who appear willing to take the whole law down, along with the mandate, and the Medicaid expansion as well.
But the longer they talked, the harder it was to say. A lot of today’s discussion started to sound like justices just free-associating about things in the law they didn’t like. That doesn’t reveal all that much about the interplay between the four separate challenges-what happens when they all have to be looked at together-or anything at all about what will happen at conference or in the drafting of opinions. Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could. Will they? I honestly have no idea anymore. As silent retreats go, this one was a lot less enlightening than I’d hoped.
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