Category Justice

Rhetoric doesn’t match the facts, and Roberts may not be a traitor to conservatism after all

Pat Ryan Leave a comment

A follow-up on Thursday’s Supreme Court Obamacare ruling:

The campaign for president hasn’t taken a time out since the court issued its ruling on the health care insurance reform last week; Barack Obama and Mitt Romney are all over it, but it turns out they’re getting a good bit of it wrong—both of them.  Check out the AP fact checker on the rhetoric since last Thursday: the law does not guarantee everyone can keep the insurance they have now indefinitely, 20 million people losing their insurance is a worst-case scenario estimate, there’s no evidence the law will add trillions to the budget deficit or raise taxes on the American people by half a trillion dollars, and very few of us should be counting on rebate checks from our insurance companies.

A healthy portion of the American people had some level of surprise or disgust at the action of Chief Justice John Roberts in this case: surprise that he found the law was constitutional, disgust at his seeming abandonment of conservative principles to come up with a way to find that the law was constitutional.  Today, CBS News quotes sources inside the court who say Roberts changed his mind on this ruling and worked to find a way to save the law, which angered his conservative colleagues.  Meanwhile, two more top conservative columnists, George Will and Charles Krauthammer, have joined the ranks of those who see a silver lining in the ruling: Roberts found a way to strike a blow for limited government while at the same time protect the integrity of the court itself!

Will:

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”

Krauthammer:

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

Last week I said that it would have been unfortunate for the law to be rejected by a single vote, in what would have amounted to a “party line” vote.  Will and Krauthammer and others think the chief justice of the United States was thinking the same as me…although he was thinking it sooner, I’m sure, and with much greater legal clarity.  But still, he was on the right track…

Health insurance law ruling will refocus fall campaign–away from the most important issues!

Pat Ryan 1 Comment

Let the predictable caterwauling begin: today the Supreme Court upheld the constitutionality of President Obama’s signature domestic policy achievement, the Patient Protection and Affordable Care Act, with Chief Justice John Roberts leading the majority on the 5-4 decision.

The heart of the disagreement over the law is its requirement that each of us Americans purchase health insurance, and the court has now ruled that the requirement does not violate the Constitution.

During oral arguments in March, conservative justices indicated they were skeptical about the individual mandate, the provision in the 2,700-page health-care law that requires nearly all Americans to obtain health insurance by 2014 or pay a financial penalty.

Arguing the case for the Obama administration, Solicitor General Donald B. Verrilli Jr. defended the law as a constitutional exercise of congressional power under the charter’s commerce clause to regulate interstate commerce. He said lawmakers were regulating health insurance to deal with the problem of millions of people who lack coverage and therefore shift costs to the insured when they cannot pay for their medical care.

Paul D. Clement, representing Florida and 25 other states objecting to the health-care law, argued that Congress exceeded its power in passing the law, which he said compels people to buy a product.

The court rejected Obama administration’s commerce-clause argument, but ruled 5-4 that Congress nevertheless “has the power to impose” the individual mandate under its taxing authority. The provision “need not be read to do more than impose a tax,” the opinion said. “This is sufficient to sustain it.”

Neither the plaintiffs in the case nor the Obama administration had argued before the court that the individual mandate was a tax.

(In fact, that is the point made—the only point made—in the story I saw when I clicked on the lead headline on FoxNews.comthis afternoon.)

The decision means that implementation of the new law should proceed, with the aim to get health insurance coverage for tens of millions of currently uninsured Americans; these are the people who currently access the most expensive health care around through emergency rooms and charity care, medical care that those of us who pay taxes are already footing the bill for anyway.

So, that’s settled.  Or not.  Arguably, the real heart of the disagreement is that this is Obama’s plan, and people who had supported similar health care insurance law revisions in the past (like the conservative Heritage Foundation and many Republicans; like the Commonwealth of Massachusetts, W. Mitt Romney, Gov.) opposed this one because it was Obama’s plan.  People like Mitch McConnell, and others who have proudly and publicly asserted that they will do whatever is required to make Barack Obama a one-term president (for whatever reason).

The dissent in the case will only fuel their fire: it argues that the Obamacare mandate that individuals purchase a product—health insurance—and its threatened denial of some Medicaid funding to states for non-compliance both unconstitutionally exceed government authority, and that since those provisions are crucial to making the system work, the entire statute should be tossed out…hmm, not much room for compromise here, I guess.

It’s unfortunate that the divide on the court was (except for Roberts) by perceived political ideology—for many people that’s going to reinforce the idea that the justices make their decisions based on politics rather than the law, and that will reinforce the left/right division in politics.  But it could have been worse: as David Franklin from DePaul University’s College of Law argues in Slate, Roberts found a way to uphold ACA in order to save the integrity of the Supreme Court.

A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the court’s very legitimacy.

And, of course, health care is now likely to become the distraction center for a presidential campaign that I’d hoped would hold its focus on employment and the federal budget.

(We don’t need to spend time discussing how, in their rush to be first with the news, CNN and Fox both got the story completely wrong, do we?  Fish in a barrel…)

Here’s a smattering of the early reports on the court ruling, for your edification and delight:

Bravo, Mr. President

Pat Ryan 3 Comments

Let’s see now: I asked President Obama to take a stand…it was all the way back to, well, yesterday (see just below) that I asked if “anybody is ready to really show some leadership” on the issue of same-sex marriage by just having “the courage to publicly do the right thing.”  Today, the president publicly affirmed that he believes same-sex couples should be permitted to get married.  Thank you, sir.

To deny some Americans the right to marry under civil law due to their gender is discriminatory.  The fact that a majority of the states have constitutional or statutory prohibitions of same-sex marriage doesn’t change that fact, but even those barriers are likely to fade away as more people come around to the understanding that the prohibition is wrong.  Fact is, most Americans are live-and-let-live sorts who wish the anti-gay extremists would just shut the hell up and stop always trying to make everybody else live according to the rules of their religion.  Just yesterday the latest Gallup poll showed that half of all Americans believe same-sex marriages should be legal, and the numbers in favor have steadily grown over the years.

Was Obama’s announcement today politically brave?  Maybe.  Taking this stand isn’t going to change the minds of the religious extremists who make up so much of the conservative fringe that’s taking (taken?) control of the Republican Party: they hate him and are never going to vote for him no matter what he says, on this subject or any other.  From a political standpoint, those people are a lost cause.  This may hurt him among some less strident traditionalists who can’t go along with his stand on this issue, and now are lost from the group of independent voters who were still undecided; those numbers are pretty hard to calculate, though.

On the other hand, it has to help him among the gay rights supporters who voted for him four years ago and are disappointed that he hasn’t been stronger on the issue, despite his administration getting rid of don’t ask don’t tell and stopping any government support of the Defense of Marriage Act.  And it should help him among some independents who feel that taking a stand on a controversial issue deserves to be rewarded; the numbers there, too, are tough to add up.  Maybe his campaign numbers-crunchers have already done that, and maybe they think that this will be a net gain for Obama in November; we’ll see.

(One lesson here: despite the characterizations his enemies use, Barack Obama really is a very moderate and middle of the road politician. If he was the big liberal the conservatives claim he is he’d have started pushing gay marriage years ago.)

In either case, Obama has shown us that he can be a leader: he’s taken a stand that he knows is not universally popular and run the risk of political harm…time will show whether or not he can persuade America to the rightness of his position on this issue.  Now, he did take his sweet time about doing it—he was very cautious, and put his toe in the water with all that “evolving” crap to see what would happen.  He could have kept his mouth shut and waited for the issue to settle down and disappear again in a week or two, as it surely would have done.  But he didn’t.  Good for him.  Good for us.

OK, let’s make gay rights an issue in the presidential election—why not?!

Pat Ryan 2 Comments

I mean, it’s not like there’s already a bunch of issues in this year’s election on which the candidates (and presumptive candidates) have staked out well-reasoned and philosophically-consistent positions as they make a rational case to the people of America asking for the responsibility of managing one of the major branches of our national government, right?  So I’d like to see if anybody is ready to really show some leadership, and gay rights and gay marriage are perfect issues: all that’s required is the courage to publicly do the right thing.

The latest engagement was in North Carolina where the voters took to the polls Tuesday to say no to gay marriage, in great big, red letters.  In Slate William Saletan summarized the vote-no-’cause-God-says-so arguments, and other scare tactics, those people heard in the campaign: Gay marriage will destroy religious freedom, and weaken the economy, and be treason against God, and we’ll lose God’s protection from racial disasters, and it will lead to man-on-dog marriage.  (Seriously.)

(Interesting perspective, though, from the speaker of the North Carolina state house, who is convinced that any ban on gay marriage in his state will only be temporary.  “State House Speaker Thom Tillis, a Republican from a Charlotte suburb, said even if the amendment is passed, it will be reversed as today’s young adults age.  ‘It’s a generational issue,’ Mr. Tillis told a student group at North Carolina State University in March about the amendment he supports.  ‘If it passes, I think it will be repealed within 20 years.’”)

This comes just a week after a Mitt Romney campaign foreign policy spokesman resigned after anti-gay conservatives “made an issue” out of his support for gay marriage.  Yes, it was Richard Grenell’s “unhinged” support for gay marriage that upset these folks, surely; the religious extremists wouldn’t have used that to cover their opposition to Grenell because the man himself is gay…no no, surely not.  Romney didn’t cover himself in glory, caving to the intolerance from the religious rightand sacrificing Grenell on the altar of getting elected.

Joe Biden’s got something to say here—what a surprise!  But I’m inclined to agree with those who think that putting the loose-lipped vice president on “Meet the Press” and having him say he is comfortable with gay marriage as a civil right is part of a political plan by the Obama campaign, which wants to reassure gay and lesbian voters, and other voters who support gay rights, that the president really is on their side but doesn’t want to take the chance of reigniting this culture wars issue and inflaming anti-gay voters into supporting Romney.  Adding the secretary of education to the mix was a nice touch.  From the standpoint of election politics, I understand that reasoning.  (There are Democratic spin doctors who insist there’s no subterfuge involved, that the campaign wishes this issue had stayed down in the weeds.)

But I also agree with J. Bryan Lowder in Slate, and probably many others in other places, when they argue that there has to come a time when the political calculations take a back seat to doing the right thing.

However, at some point this kind of political prevarication is going to have to give way to principle. Though the cultural mood in this country regarding homosexuality has been morphing in the right direction for a number of years now, waiting for the zeitgeist or generational turn-over to solve everything isn’t going to help those citizens affected in the meantime by dangerously reactionary legislation.

(They’re talking about you, Mr. President, if you’re up to it.)

Lowder goes on to explain, and links to a FiveThirtyEight blog post in the New York Times that further explains, that the North Carolina constitutional amendment doesn’t just prohibit same sex marriage, it outlaws all civil unions and domestic partnerships in the state regardless of gender.  Now, God’s position on heterosexual civil unions is not entirely clear, but there is a new Gallup poll showing half of Americans today believe same-sex marriages should be recognized as valid by lawwith the same rights as heterosexual marriages.  That’s a dramatic change from 15 years ago when it was only 27% favoring and 68% opposing.

The tide is turning: last week Funky Winkerbean started a new series, and I have a feeling the good people of Westview, Ohio will end up on the side of the angels.

gay prom at westview

Racism and gun culture? Gotta be time for Bob in the Heights

Pat Ryan 2 Comments

The reasons why vary from topic to topic, but I don’t always have something worthwhile to say on every hot story du jour while it’s driving the cable news echo chamber nutty; the shooting of Trayvon Martin is one example.  But my friend Bob Eddy has something worthwhile to say about that, and related issues to which it gives rise, and I asked him to say it here; the comments button is right up there:

Watching, and listening, to the continuing story of the Trayvon Martin shooting—which after a good run in the media is already being pushed aside by our latest multiple shooting, in Oakland—I think beyond the hoodies and other nonsensical side stories basically lie two societal issues that continue to plague America today: racism and our gun culture. And I might add, a tip of the hat to today’s rabid media, which remain so ready to leap before looking. As soon as this story became hot (oddly, almost a month after the event) sides were taken. When did it all slide from investigative reporting of known facts toward conjecture and opinion? I’m guessing somewhere around the start of the 24/7 TV news cycle, which also gave birth to the polished and primped Ken and Barbie bobble heads passing for journalists today. Somewhere, Water Cronkite is crying in his grave.

No, I’m not accusing George Zimmerman of being a racist, but much like the Rodney King beating at the hands of the L.A. police and the O.J. Simpson trial, America’s visceral divide has suddenly become exposed and naked to the sun like the sensitive underbelly of a turtle tipped onto its back. Why is it that our country is so reluctant to talk about race—is it painful? Still too touchy a subject even 50 years past the civil rights movement of the 60s? That’s half a century, folks. Healing starts with self-awareness, not denial. The truth sets you free and allows you to move on. These thoughts were recently provoked by an excellent opinion piecein the Houston Chronicle.

Yes, the days of the Jim Crow laws are long gone, and we have a black president (even some black pro football coaches!), but this doesn’t negate the statistical facts (rate of unemployment and incarceration, to name two) that prove racism’s more subtle vestiges remain, revealing a less than level playing field in America today. Using the tragic shooting of Trayvon Martin as an easy example, I challenge anyone to look at me with a straight face and convince me that had the “colors” been reversed, the outcome would have been the same. Yes, I’m talking about a Twilight Zone world where an armed black man trolling the streets of a gated community follows a “suspicious looking” young white man—11 years younger and 20 pounds lighter than he, I might add—ignores the pleas of the 911 dispatcher to stay in his vehicle, and instead challenges, and then shoots the other man dead in a scuffle, declares self-defense, and after a brief trip to the station is set free with no charges filed.  “Well Mr. Washington, everything seems to be in order, just a couple of things to sign here…poor son of a bitch…now you be more careful next time, hear?”

Back on planet Earth, any black man cruising an affluent neighborhood in America today is much more likely (again, check the statistics for racial profiling) to experience only one thing: being pulled over and questioned, and if he’s lucky, that’s all. Ask Robbie Tolan, a [Houston area] 23 year old black male (and son of an ex-professional baseball player) who on New Years Eve 2008 was shot at three times (fortunately only wounded) by the local police after pulling into his parents’ driveway—in front of his hysterical and pleading mom! As a matter of fact, it was the cop’s manhandling of his mother that provoked Tolan, who was already lying on the ground as instructed, to protest. You see, unfortunately mom and dad lived in Bellaire, a predominately white and affluent city tucked inside of Houston, and, well, it was 2:00 in the morning, and there was the (inaccurate) report of a stolen vehicle…

To me, the bottom line is George Zimmerman in all probability wasn’t necessarily a bad guy; evidently, to many, he was even likable and would fall outside the definition, if there is such a quantifiable thing, of a racist. But on that day, against the advice of a 911 dispatcher and contrary to his training as a neighborhood watch person, he provoked a common misunderstanding, it quickly went south, and he chose to defuse the situation with a gun—sentencing Trayvon’s parents to an empty life of grief and unfulfilled dreams. For this he should be held accountable.

For those of you interested in a, granted, lengthy, but reasonable and balanced account of events leading up to this tragic shooting, I encourage reading this story in Sunday’s Times.

Which leads to our second national topic, and an important question I think America needs to ask itself today: are we, as a society, ready to accept armed neighborhood watchdogs? If yes, well, all I’ve got to say is get ready for a lot more of this. Does anyone really feel any safer? Certainly not Trayvon Martin. He’s dead. Welcome to the utopian world of the NRA, where roughly 30,000 Americans a year lose their lives to bullets, and every American—thanks to our permissive own and carry gun laws and under the protection of the “stand your ground” ruling (currently upheld in 27 states)—can legally find themselves judge, jury, and executioner in a split, life-changing second. Ask Joe Horn, of Pasadena, Texas, who in 2007 also chose to ignore the repeated advice of the 911 dispatcher he called, and while still on the line, shotgunned in the back two unarmed Hispanic burglars as they fled his neighbor’s house—and got acquitted of any charges. What a civic hero!

The fact that the latest gun rampage in Oakland is already relegated to “ho-hum,” on page five in my local paper, speaks volumes about our unique American culture. Oh, I know, I can hear the outcry now, as it did after the Virginia Tech massacre: “If only one of those students had a gun!!” Yes, any logical person can see that the answer to easy gun access is, well, more guns. Recently, 22-year-old Trey Sesler of Waller County, Texas had more guns—six, to be exact—and he used them to kill his parents and brother. Ho hum…

Who do we have to blame for this? No one but ourselves and the gutless politicians of both parties who bow down before arguably the most powerful lobbying organization in Washington today. After all, even after the nearly-successful assassination attempt on one of their own, Gabrielle Giffords in Arizona, America watched as Congress, and this Administration, stood united in their silence. I mean, come on, when is the last time the NRA got slapped down on anything? Almost comically, these patriotic defenders of our Second Amendment recently became so imaginative in their quest to stay on a roll that they dreamed up muscling state legislation through in Missouri, Alabama, and Tennessee to protect gun owners from the scourge of discrimination. Say what!? Oh, the oppression and shame!

I guess my biggest puzzlement is I just don’t get the frothing, rampant paranoia of suppression—have you seen this recent “interview” of the NRA’s Wayne LaPierre? Short of mail-ordering a howitzer from the back of a comic book, exactly what can’t your average gun enthusiast today do—hunt with a Gatling gun? Has Obama even mentioned the words “gun control” once since becoming president? Yet gun sales continue to skyrocket, because we all know “He’s going to take away our guns!!” Like the screwball prophets predicting the end of time, it’s coming any day now! Ironically, Barack Obama is the best thing that ever happened to gun shop owners.

Well, enough said…this horse got out of the barn a long time ago, and I can’t imagine what it would take to get it back in. But remember, citizens: stay vigilant! Guns don’t kill people—hoodies do.

Bob in the Heights

[One update: this week the police officers in the Robbie Tolan case, previously acquitted on the criminal charges, were dropped as defendants from Tolan’s civil suit by the federal judge hearing the case. PR]