Don't you know that if people could bottle the air they would? Don't you know that there would be an American Air-bottling Association? And don't you know that they would allow thousands and millions to die for want of breath, if they could not pay for air? -- Robert Ingersoll, "A Lay Sermon" (1886)
In this week's Sift:
- Is Health Care Reform in Trouble? When the court cases against the new law were filed, legal commentators thought they were a stunt. Now they're saying it comes down to Justice Kennedy, and who knows what he'll do?
- Sacrificing Your Life to Their Conscience. "Conscience" laws in a number of states allow medical professionals not to treat you if they disapprove of what you're doing. Now the House is considering H.R. 358, nicknamed the Let Women Die bill.
- 2012 Republicans Run Late. I know we just had an election and it seems way too early to talk about the next one. But actually it's getting late. By recent standards, Republicans who want to challenge President Obama should be running by now.
- Socialism Wins the Super Bowl. Ever wonder why you don't hear anything bad about the owner of the Green Bay Packers? There isn't one. Owners, it turns out, are not strictly necessary.
- Short Notes. President Bush can't travel freely. Glenn Beck jumps the shark. Obama faces off with O'Reilly -- when will Palin face Maddow? Connecting the dots from Cairo to global warming. Arizona has run out of stuff to sell. Plus, Lazy Teenage Superheroes and the Supernatural Registration Authority.
Slate's Dahlia Lithwick has such a good lead paragraph I'll just steal it:
Articles of faith, as a rule, don't change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama's health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?
Let me back up and set the stage. The part of the Affordable Care Act (otherwise known as Healthcare Reform or Obamacare) that is being challenged in court is the insurance mandate: People who don't have adequate health insurance will have to pay extra on their income tax form starting in 2014. If that's interpreted as a new tax, it's clearly constitutional, because the Constitution grants Congress a fairly broad power to tax. But if it's interpreted as a penalty, that's dicier; the constitutionality of the mandate depends on the Commerce Clause: "Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."
The Commerce Clause is the stretchiest part of the Constitution, mostly because the Founders had no idea what a big deal interstate commerce would become. In 1787, just about everything you used was made locally. Or if it wasn't, it could be. Luxuries like tobacco and fine manufactured goods came from other states or overseas, but if you had to do without all that stuff, you could. People grew their own vegetables and had their shoes made by the local cobbler, who got his leather from the local tanner, who bought hides from the local butcher.
Today, living on local products is a major challenge. Just about everything you buy crosses state lines before it comes to you. So the power to regulate interstate commerce is more-or-less the power to regulate everything. And over the years the Supreme Court -- for both liberal and conservative reasons -- has chosen to interpret the Commerce Clause broadly: In Gonzales v. Raich (2005), the Court held that even use of homegrown marijuana could be criminalized under the Commerce Clause:
the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity
Justice Scalia concurred with that opinion. So everyone assumed it would be impossible for him to squirm out of that position and deny the same argument for the insurance mandate. Specifically: A person's decision not to purchase health insurance has a substantial effect on the national market for health care.
The Atlantic's Andrew Cohen argues that Scalia will squirm out, and that the signal of this squirming is a dissent that Justices Thomas and Scalia issued January 10th to the Court's refusal to hear another Commerce-Clause case. It's fairly rare to publish dissents to such refusals; typically the Court turns down a case if it sees nothing in the lower court rulings it needs to weigh in on, and that's that. That two of the Court's conservative justices chose to do so, Cohen says, signals that they are ready to overturn the ACA.
Simon Lazarus of the Public Policy Counsel finds similar decisions containing words that Justices Roberts and Kennedy will have to eat before they can overturn the ACA. But at the same time he raises the specter of Bush v Gore. Law may not matter if the conservative judges decide that the outcome is important enough.
I'll let Lithwick wrap up:
If the odds of success for the health care challenges have tilted in recent months, it's not because the suits themselves have somehow gained more merit. It's because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come.
There is no one unified ACA court case. So far four federal judges have ruled in four different districts: Two found the individual mandate constitutional, and two didn't. (Several other judges have found procedural reasons for their districts' cases not to go forward.) If you are only aware of the negative rulings, there's a reason: They're the only ones getting media coverage.
DeanDemocrat points out that the mandate is a result of an attempt to compromise with the Republicans and the insurance companies. If we'd gone for a single-payer system, we wouldn't be having this debate.
Building on the Ingersoll quote at the top: A private market for health care is like a private market for air. Rather than making air a public good, we've created a system where the air stays private, but we have a government subsidy to help people pay for it.
The case against the individual mandate is that if it is constitutional, then the powers of the federal government are virtually unlimited. For some reason critics have fixated on broccoli: If the government can make you buy health insurance, why then, it could make you eat broccoli. Matt Yglesias comments:
I really think these efforts to scare people with the specter of unlimited government founder on the fact that any government empowered to levy excise taxes is conceptually pretty much unlimited. The government is allowed to tax everyone, and use the revenue to subsidize broccoli consumption. Now maybe you think that’s legally distinct from the idea of fining people for failure to consume broccoli. But the practical impact is identical.
In any reading of the Constitution, with or without an expansive interpretation of the Commerce Clause, Congress has the power to do things that sound absurd. The constitutional remedy for this possibility is for the people to elect sensible representatives.
House Republicans seem to have abandoned their attempt to redefine rape, but not their overall culture-war agenda. According to TPM, a new bill in the House would "allow hospitals to let a pregnant woman die rather than perform the abortion that would save her life."
H.R. 358, the Emergency Medical Treatment and Labor Act (which Daily Kos' Joan McCarter calls "the Let Women Die bill") is the logical extension of those "conscience" provisions 46 states have put into their laws, allowing right-wing Christians not to participate in medical procedures they find immoral. (I have yet to hear of a liberal or non-Christian or even nonstandard-Christian application of these laws. Imagine the outcry if some televangelist died after a car wreck because a Jehovah's Witness EMT refused to give a blood transfusion.)
In Idaho, a pharmacist refused to fill a prescription to stop the bleeding in a woman's uterus, because the nurse couldn't give assurance that the patient hadn't just had an abortion. (If she had, apparently the pharmacist was content for her to bleed to death. God's will, I guess.) When asked to recommend someone who would fill the prescription, the pharmacist hung up. The Idaho Board of Pharmacy has found that the pharmacist did nothing wrong. In Idaho, where the next drug store might be some distance away, you have no right to get a prescription filled if the pharmacist doesn't want to fill it.
I have a compromise proposal for those states where some kind of conscience law is unavoidable: Medical professionals shouldn't be able to make these life-and-death decisions on a whim. If a doctor, nurse, or pharmacist wants to claim such a right-of-conscience, s/he should have to file ahead of time and go through a process similar to claiming conscientious objector status in war. That would allow hospitals, drug stores, and patients to maneuver around these people's limitations, and the more arduous process should weed out the folks who are just being jerks.
The Daily Show's Kristen Schaal says the redefinition of rape was necessary "to protect us from the worst kind of rape: money rape." She defines "money rape" as "forcible taking of taxpayers' money to pay for abortions." (That's parody, folks.)
Everybody who is not a political junky will be amazed to hear this, but the race for the 2012 Republican nomination is off to a late start, at least compared to recent presidential cycles.
Last time around, Barack Obama announced his candidacy right about now: February 10, 2007. Hillary Clinton, John Edwards, Joe Biden, Chris Dodd and various others were already in. On the Republican side, John McCain held off until the end of February, but he had already formed an exploratory committee the previous November. Mitt Romney announced on February 13. Rudy Giuliani, Mike Huckabee, Sam Brownback, and various others were already in by now.
In the 2004 cycle (which is more comparable to 2012 because there was an incumbent president), Howard Dean announced his candidacy in August of 2002, and Dick Gephardt, John Edwards, and John Kerry had exploratory committees out there raising money by the first week of January, 2003.
By contrast, Daily Kos' GOP Cattle Call 2012 says "the only Republican to even file exploratory papers thus far is Herman Cain, a millionaire best known as the former CEO of Godfather's Pizza." And it's not just that people are saying maybe in a wink-and-nod way. Yeah, we are 99% sure Mitt Romney and Tim Pawlenty and Rick Santorum are running, and Newt Gingrich and Michelle Bachmann clearly want to, but there's genuine doubt about whether Sarah Palin and Mike Huckabee will be in or out.
This is just a guess, but I think the Palin uncertainty is making everybody wait. Minor candidates usually go first (because they need the publicity). And the first impression a minor candidate wants to make this year is different depending on whether Palin is running.
The Daily Kos Cattle Call and National Journal Presidential Power Rankings differ wildly on who they take seriously. National Journal takes more of a political-insider view and so gives points to people for organizing and fund-raising, while DKCC is more focused on polling. So DKCC's top three are Huckabee, Romney, and Palin, while NJ's are Romney, Pawlenty, and Huckabee.
In the 2008 cycle, I was awful at predicting Democratic trends and uncanny when I analyzed the Republican race, maybe because I was more objective. This time, the only Republican who scares me (in terms of beating Obama and becoming president) is Huckabee. For this reason: When I ignore the content of his words and just look at his body language and listen to his tone, Huckabee does by far the best job of sounding like a reasonable guy. If you had all the potential Republican candidates read the phone book out loud, and then asked a random group of low-information voters who they'd trust to do the right thing about an issue they know nothing about, they'd pick Huckabee.
On that look-and-sound test, Romney seems calculated, Bachmann crazy, Palin flighty, and who the hell are these other people anyway?
Fortunately, Huckabee doesn't seem to be raising money yet or maneuvering to sign up organizational talent in key states. I don't know why. Maybe he's happy being a Fox News host.
Another thing to bear in mind about this race: No sitting governor has any chance, because the problems of the states are just too big. Daniels, Jindal, Barbour, Christie, Perry -- forget about them. They're going to have to throw people out on the streets, raise taxes, and/or sign off on huge deficits right in the middle of the campaign. It won't fly.
The main reason I think Palin will lose in an embarrassing way (even in the primaries) if she enters the race: She doesn't have the organizational ability.
Organization is why the Democratic race came down to Obama and Clinton last time, and why Obama won. His golden rhetoric, personal charisma, and yes-we-can slogan got all the credit, but Obama's people were consistently a step ahead. They knew all the rules, and understood that you run a caucus campaign differently than a primary campaign. They consistently out-delegated Clinton in caucus states, and that was the difference.
Contrast Palin: Last week we found out she had taken the unusual step of applying to trademark her name, and the application was rejected because she forgot to sign it. Is she really going to out-organize Mitt Romney?
BTW, trademarking is a commercial rather than a political move, and so fits my belief that Palin is more interested in being a celebrity and making money than in governing. Funny, being a celebrity was bad when Obama did it.
The New Yorker points out one of the little-publicized stories of this year's Super Bowl: The Packers are owned by their fans. There is a limit on how much stock any individual can own, and the by-laws don't allow the team to pay stockholders dividends, give them tickets, or provide anything of value other than a football team worth watching. The only reason to own stock is to have a say in how the team runs.
That explains why the Packers haven't moved to a bigger, richer city (Green Bay has about 100,000 people and is not a suburb of anything larger) and still play in historic Lambeau Field (which has been consistently upgraded over the years). ESPN adds that beer prices are reasonable, and the concession profits go to local charities.
Remember the Packers the next time somebody claims that profit is the only way to motivate excellence. The franchise has won 13 NFL championships (nine before the Super Bowl was established in 1966), more than any other team. Ask your free-market-fundamentalist friends how Green Bay or the Packers would benefit from having an owner to siphon $20-30 million of profit out of the team every year.
The Green Bay model motivates community involvement. When a big snow needs to be swept out of the stands before a game, volunteers show up to do it. That would be incredibly stupid if their free labor was benefitting some billionaire owner. But it's not; it benefits a community institution.
How did this come about? The Packers' ownership model was established in 1923, before anybody knew pro football would be a gold mine. No other major sports franchise works this way, and the owners of the other franchises would rather you didn't find out about the possibility. NFL rules ban any other teams going the way of the Packers, but the Packers are grandfathered in.
A radio ad is using the community-owned Packers as a way to tweak Wisconsin Rep. Paul Ryan.
For a long time now, I've been telling you that Bush administration officials with torture records shouldn't travel too freely. Well, this week President Bush himself canceled a trip to Geneva, apparently to avoid a criminal complaint filed against him in Swiss court. Protests were also planned, and the official explanation of the cancelation was security.
If only you had $300, a video camera, some talent, and a few friends with nothing better to do -- then you too could have made Lazy Teenage Superheroes.
And while we're talking about the more-than-human among us, have you filed your papers yet with the Supernatural Registration Authority? Descended from the UN's post-World-War-II Supernatural Refugee Board, "the Supernatural Registration Authority is responsible for tracking the birth/creation, movement, employment and death/transubstantiation of the world's supernatural entities." Registration is free.
I haven't watched Bill O'Reilly's interview of President Obama yet. But it does raise a question: Can you imagine Sarah Palin or any of the other Tea-Party champions having a one-on-one sit-down with Rachel Maddow? Sarah and her ilk don't have Obama's confidence or courage.
I'm getting the feeling that Glenn Beck has jumped the shark. He has a truly wacky interpretation of the Egyptian protests that winds up with the whole eastern hemisphere divided among China, Russia, and a Muslim Caliphate. (Spain, Italy, and maybe even Britain and France wind up in the Caliphate. Russia gets the Netherlands and China grabs Australia.)
Naturally, lefty voices like the Guardian and Rachel Maddow noticed the craziness. But even conservatives like US News' Scott Galupo (a former John Boehner aide and Washington Times writer) have lost their fear of criticizing Beck: "Beck is a college sophomore with a big budget. He knows just enough history to be dangerous rather than simply ignorant."
And Bill Kristol calls Beck's presentation a "rant", saying that "he brings to mind no one so much as Robert Welch and the John Birch Society. He’s marginalizing himself, just as his predecessors did back in the early 1960s."
Paul Krugman connects some dots: Protests in the Middle East connect to high food prices, which connect to extreme weather events like last summer's Russian heat wave, which connect to global warming.
the evidence does, in fact, suggest that what we’re getting now is a first taste of the disruption, economic and political, that we’ll face in a warming world. And given our failure to act on greenhouse gases, there will be much more, and much worse, to come.
Explore the sorry mess that is the state of Arizona: Already ranked near the bottom in education and children's health, the state faces a $3.2 billion deficit and a legislature determined not to reverse recent tax cuts. They can't sell the state capitol again this year, so … more education-and-health cuts ahead. And more flashy distractions like trying to take away the citizenship of "anchor babies", making sure all future presidential candidates have a valid birth certificate, nullifying the national health care law, and offering new "In God We Trust" license plates.
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