Monday, March 27, 2017

Governing in the Age of Obama-Trump.

The failure of the health care repeal-replace-fix-alter-redo whatchamacallit has a thousand mothers. But as Democrats celebrate, and the new announces that the first 100 is the worst 100 and that Trump is over and.. what, we can go off and celebrate, let me bring you back to reality.
Nothing in politics is ever as it seems, and the media, for some odd reason, never look father than their nose.  Let's assess where we are:
1. Obamacare lives on. As it adds trillions to the debt and family budgets with higher premium costs and limited reduction on medical expenses, there is little doubt that unless altered, and altered pretty radically, there will be very few private insurance companies left to provide insurance. What will be left is the massive increase in medicaid eligible (where the vast majority of newly insured are going) and a continuing problem for anyone who needs to buy insurance for themselves and their  employees.
2. If that happens, then the entire program will be reexamined.  You cannot enforce a "penalty-tax" if the person has no option to buy anything.  The Court will strike down the rule, and the enforcement fails.
3. Remember, the bill failed not because it wasn't being luxuriant enough for  the Freedom Caucus Republicans but because it wasnt fiscally conservative nor market oriented enough.  You think the next option up will be less conservative?
4. So, where we are is on the path to a collapse of the medical insurance option under the bill, and a massive realignment of insurance premiums for not merely those affected now, but for every employer and every employee in the US.  When unions and professors and companies and Universities see 20-40% annual increases in that part of their budget, something has to give. Higher tuition? More cost share for employees? Higher deductible, co-pays, less coverage? Shifts to more employee controlled (and paid for) coverages?
5. And the Republicans will still not understand. A week after the ACA passed, I wrote  a short piece proposing this solution: Pass a bill that required the agencies and companies affected by ACA to enforce it "exactly as written." Remember all of the exemptions, changes, delays that occured in the first  two years? Nope, you wrote it, voted for it, that's your baby.  The entire bill would have collapsed, or the people affected by the bill as written, would not have had their hurt delayed.

And the collapse of President Trump is not (sorry to be such a wet blanket) imminent. Our government, our system, is designed to provide means for strong presidents to succeed, and means for weak presidents not to fail. So, until President Trump figures out that he is only in charge of people and ideas that move with him, supported by the people, and that those must get through a system full of opposition, and that you cannot make a deal with each member like you could with a business partner because some of them, many of them do not want your deal and will not suffer from its failure.

Let's see how much and how fast President Trump can learn this new lesson, this new paradigm.
The art of the deal in government is compromise, but on your terms, and deftly, often labored over months, years, until the exact right moment when you see the light and push and idea into the void.
Who ever thought you could sum it up in 17 words?

Wednesday, March 22, 2017

The Dem Assault on Gorsuch Resembles NKorea's Latest Rocket Launch.

Well, either I missed the entire point or our national politicians have entirely forgotten how to ask questions in a congressional hearing.  Watching the Dems flail at Gorsuch has been, even with Sen Franken, not even a little amusing. Hobby Lobby, protecting the little guy, supporting corporations... this is the terrain that Dems have chosen on which to do battle with the conservative Court?

And they have, so far as I can tell, not even mentioned natural law, which I consider the most significant clash with progressive ideals available. What would Gorsuch say to this: "Would you please describe your position on how natural law, and do define that for us, should and would affect your decision making as a justice on  the Court?

Then tease out in every way how that idea would affect the current issues of the day. At what point do those rights attach? (The big issue of course, is the concept of natural must define the  concept of person hood, ie. life  begins when?)

And natural rights, but to corporations? If corporations are not natural they do not have those rights, and then, those rights must come from government, and then could be restricted? (Campaign spending, speech, religious liberty).

The problem is that our political leaders are not prepared to fight that fight. Where is Sen. Moynihan, Senator Paul Simon-- our Senate is filled (with apologies to my home state) with Carl Curtis's and Roman Hruska's. Good people no doubt, but think an original thought, never.

So, Gorsuch is a shoe-in, and the only question is whether the Dems make the Reps avoid cloture or make them use the nuclear option. I think they will not do that here- despite their anger at the Obama snub last year, because it is always the next fight that matters. And the next fight, especially if it is Justice Breyer, or Justice Ginsburg. Because the next justice could determine the course of the court for the next generation.

Or not, as we know. You just never know.

Friday, March 17, 2017

The Natural Law Debate: Predilections and Predictions

Neil Gorsuch, by all accounts, has been an excellent judge, and has not left much of a paper trail that stirs up controversy. That should be no surprise given the history of confirmation hearings since the Bork failure.  Any judge contemplating a move up the judicial ladder (and yes, people do plan for their futures long before they become judges) strikes a balance between their philosophy and their written opinions and published articles.  To become an advocate for any judicial position puts that potential nominee too far out there to become a nominee in our current divided climate.

Nominee Gorsuch has a background in natural law, having studied at Oxford under John Finnis, a leading scholar on the natural law philosophy. So, you are about to hear a debate on that legal philosophy intended to confuse you, strike fear in your heart and make Gorsuch look like a radical nominee.  It is unfortunate, because natural law has been one of the leading legal ideas in our history for over a century, waning and rising on the economic tides of history.

Fundamentally, natural law is a system that posits that the law's legitimacy rests on the moral values intrinsic to human nature."If a law is unjust considering those values, it really is no law at all" would be the most direct statement of the natural law principle.
[You can find a pretty good summary of natural law at :

The principle is worthy of discussing, but unfortunately, our current politics constricts every discussio into a soundbite.  You will hear the defenders and contenders of Gorsuch conflate past cases, about property rights v. workers rights, to contend that natural law is an anachronism befitting of the white old men of the 19th century, and damning to our multi-cultural, progressive sensibilities.

But consider this debate on the Court: Are there any moral principles derived from human nature that should form the foundation of government action? (All law is derived from governments action; that is not in serious dispute. The source of the power granted to  government to implement law is another story.)
I have asked this question, in a different form, to the class numerous times.
Are there any universal truths?

Consider the debate on the Court going something like this: Is slavery ever moral? If it is not, why, what is the principle that supports our position? Is that the value of every human life, the right of every human to decide for themselves their course, their path, for good or ill? Is that right universal to every living human being, without  regard to capacity, ambition, personal goals?
And then, after a slight pause, heads nodding in progressive approval, of course, that is fundamental to freedom, that the rights of each of us are derived from our innate humanity, given to us by God our creator.....
Then, someone raises this question: When, if that is true, does that right begin?

With every legal issue, the rub comes in the implementation. And the complications become clear as the answers more difficult. Unless we abandon consistency, the very principle that our law is supposed to provide to the polity. If our law is not consistent, what good is it.

Pay attention to the upcoming debate, if only to discern how it is used by both sides to obfuscate the facts. A good healthy debate about natural law principles would force the citizens to come up with some very hard answers for issues we have dumped off on the judicial  branch, and perhaps allow a reckoning among disparate views long thought impossible.


Sunday, March 12, 2017

Undoing the Undoing of Affordable Care

Hail Blogistas!!
So, by now, you have received the note announcing the return of this blog and you have returned to find 3, yes THREE, blog posts waiting for you and your analysis.  I am posting this Sunday night, and it will be shorter, mainly because the availability of information is sparse.

The Republicans, who have had 8 years, more or less, to battle against Obamacare, passing bill after bill to repeal it, secure in their knowledge that their bills would never become law, are having a time of it.  They are finding out the dilemma of repealing a law that creates a program for millions. Call it an entitlement if you wish-- you could make the same argument with the capital gains tax, but once a program is in effect, and there is a continued constituency for it, the entire dynamic about repeal changes.

Abstraction in politics is wonderful at creation; deadly at repeal.  It is great to describe the benefits of programs you make, to espouse their successes before they become successes, and to deny any harm they might do.  No one can prove the effect of the program before it begins, and OMB reports are dry and easily ignored tens days past publication. Who cares, who pays attention?

But a face on a program, a name and a story about  how the program removed, taken from the person, who now has a face, a family, a problem you can not only describe but see, well, that puts the process into limbo. And people can quantify the results of the repeal. People can crunch numbers and see who's in and who's out. And the pressures on the legislators who must make the decisions black and white, jump out at them, especially if they reside in their districts.

So, once again, the health insurance and health care and costs and prices and availability and deductibles and co-pays and every nook and cranny of every issue rises up and constricts the will of Congress to act.  It amuses the political elite of both persuasions, or perhaps now there are more than two, but they dont worry much about paying for insurance.  For so many Americans, the fear is not that something will get done, but that once again, whatever gets done or not, will be such a mess things will only get worse. And the people long for competence, and straight answers.

We watch as the repeal unfolds and doubt, if  my  sense of the polity is accurate, most of us are not confident that even as the sun rises an hour different than it did last week, things will get better.
That is the crisis we are facing even greater than the rising cost of health care and health insurance.

Unless we face that, apart from the politics of the moment, none of this will matter.


Saturday, March 04, 2017

Executive Action and the Living Constitution

Good day class,
So, more about emails, and contacts with Russians, and now, a story that during the campaign, the Obama Administration used the FISA Court to wiretap Trump Tower, ostensibly to look for and uncover illegal contacts that Trump officials or the candidate himself might be having with foreign (read Russia) officials.  CAVEAT: We do not know if any of this is true.

What I do want to discuss is the connection between the expansion of executive action, and the power of the executive branch, and the theory and value of a living constitution.

Those two may seem unrelated, and one can make the argument that they are very different uses of power by distinct branches.  Executive power, the use of the Administrative agencies to implement the law Congress passes is essential to modern government.  We cannot expect, for example, Congress to draft regulations to implement a change in the tax code.  In passing the law, Congress gives to the Executive Branch and the agencies, with their tens of thousands of employees, the power and duty to write regulations which must pass through hearing and comment periods, to put into effect the mechanics of implementation.  This is a well-accepted and constitutionally permissible use of executive power. You may not like the power of the bureaucracy, but no modern government can operate efficiently without it.

What binds the bureaucracy is that the regulations it writes and administers must be done, and only be done, to effectuate the general power and specific authority Congress has directed it to use to put into effect the  broad goals and specific objectives iterated in the law passed by Congress.

Jump to the vision of a living Constitution-- the principle best espoused today by Justice Breyer, that the Constitution was never intended to be a document frozen in time. That it is the duty of each generation to understand the contemporary values of the polity, and to take into account all of the changes that have occurred, and to mold the values of the Constitution to meet those changes.  The justices are bound by the words of the document, but are not prevented from adopting positions that appear (literally) no where in the document, because the document itself anticipates, authorizes and authenticates this evolution.

Now, what is the connection?

On their face, both the use of executive power and the ability of the Court to write decisions not hidebound by the moral and political strictures of 1789 seem to be sensible approaches to the problems of modern America.

But what if the balance between the branches (separation of powers) or the balance between the people and their government (popular sovereignty) gets out of whack? What happens if one of, or all of, the three branches get lazy?
Let me take two examples, and let's start with "A."

ACA: the passage of the health insurance overhaul and its initial five years of implementation are a perfect example of the sharp dissonance between legislative action and administrative implementation. (I am not talking about  the website- that was simply an example of the failure of government and people). What I am talking about is how the health care law was rewritten numerous times without a single congressional vote.  Recall, if you will, the myriad of exemptions, the granting of waivers, the reallocation of tax funds, the expenditure of public funds to prop up failing coops and failing insurance companies, all done ostensibly to "make the law work."  None of these were authorized by Congress, except, if you take the language of the law.  Congress, incapable of reaching consensus, chose to give the executive branch broad authority to write regulations to address issues that came up.  Genius, you might say.

Ok, where does that authority stop? Could the administrators write regulations to grant exemptions to every third American who lost their doctor, or lost their plan, kind of like a National Health Lottery, where, if dissatisfied, you could draw your plan out of a hat and see if you won?  What about those poor insurance companies who took the chance on the plan but ended up with a whole bunch of sick insureds that cost them too much profit? Can't we all just give a lot? Congress wanted this to succeed, and we all know how little Congress gets done, so, c'mon, can the administrative branch fix the law and make all those poor Congressmen and Congresswomen feel good about themselves?  Imagine how the collective psyche of that body would suffer without our help.

The problem, of course, is that Congress may or may not have wanted those administrative actions;  it may or may not have debated those issues; it  may or may not think them appropriate to the overall objectives of the legislation.  The law wasnt passed not to fail, it was passed to address the problem of the uninsured and the rising costs of health care.  (Guaranteeing the financial success of insurance companies hardly promotes the cost controls of the local hospitals fees for inpatient ibuprofen.)

Congress, having washed its hands of the law, (or half of Congress in this case), now abdicates its fundamental duty: once passing the law to address a problem, Congress has a duty to oversee its implementation to insure that  the law is working as expected.  It is not a permissive activity; Congress must do this.

Jump to the principle of a living constitution. The broad concepts are the same, though the players are different. The founders gave us broad principles, but left much of the canvas blank.  They expected that the central player in that drama, the story of the changing Constitution, would stay engaged. But that player has, like Congress, taken its work as being done in 1789, with ratification, and has decided to let the other players take control.  The President considers his responsibility for those central constitutional questions complete with his (I will add the pronoun her when Americans elect a woman) vetting and nomination of a justice. The Congress considers its work as done with the confirmation of each justice.

And off we go. We often hear the lament of the disabused. Wow, did Justice Warren turn out to be not what we thought.  Can you figure out Justice Kennedy?
Listen carefully to what they are lamenting: this justice didn't vote the way  I would have. He or she didn't express in that decision my political or moral or economic views He doesn't represent me.

No kidding.
The concept of a living constitution promotes the view that the Court should and does act as a representative branch of government; that the Court is but one more body to validate our individual views. (I don't say collective, because much of what the Court has done is to protect the minority views- which, is to say the least, a vision of living constitutionalism that defies the concept of popular representation.)

But the player most important to the entire process has "gone fishing." Off for the weekend, or decade, or century.  The people themselves, who were central to the entire conception of judicial review, have decided to take a break from their role in preserving the institution of judicial review and judicial supremacy, and in that, have delegated their responsibility to .... to.... to whoever wants it.  And over the law century, it has increasingly become the Court itself that has taken it on.

The living Constitution is much like the double-edged sword. It cuts both ways. It has taken on the mantel of progress; Justice Breyer proudly demonstrates that the value of a constitution that evolves distinctly through the views of 5 votes, of which is is one, means that it can move forward, into progressive modernity and make the lives of Americans better.

Martin Luther King, Jr said, and believed, that "The moral arc of the law is long, but it bends toward justice." But when we, the people themselves, allow another body to define what  justice is, we should be aware how precarious the permanence of principle.

Second letter A: abortion.  If the evolving constitution fundamentally reflects the movement toward what most of the people want, if it is bound not by the old, staid, stale word of the founders, but instead by the movement of the polity toward the values and views of the age-- if that is true, then when the opinion polls take a turn, on such issues as, oh, abortion, is it not perfectly appropriate, nah, even required under the principle of an evolving constitution, that a court toss out precedent and move the law into the modern day?

Many current opinion polls show that the majority of Americans oppose abortion.

How's that for evolving public standards of decency? What is Justice Breyer going to say when the arc of the law bends back again, as it has done over and over, not like piece of steel, but instead like smoke trail of a bottle rocket. When it bends back again to a very different position? Will the living constitutionalists be on their feet arguing for precedent, or keeping to tradition (as in 1973 Roe v Wade tradition). What binds the Court is the value of change, and change founded on the value of change may not be to your liking.

I hope I have made the connection, but as the hearings for the newly nominated justice begin, watch the language of the two sides.  The originalists will be slying positioning the nominee to accept the emerging majority opinions (probably if they are bold enough, using Justice Breyer's own words) and the living constitutionalists will be advocating for stasis and permanence and precedent (using the words of Justice Scalia-- they won't use Justice Thomas's words I'll wager, but they could) to box the nominee in.
And they will all fail, because the only thing that boxes the Court in, in any real way, is the power of the people themselves to define the values of the world they live in, and wish their laws to be constrained by.

Our system works best, when it works at all, when all the players are on the stage, acting their parts, and not off in the audience, or more likely, at intermission early getting a beer.

Go get 'em tigers.