Winning Progressive

(By NCrissie B)

This week’s series considers Tom Allen’s new book Dangerous Convictions: What’s Really Wrong with the U.S. Congress. First we began with common explanations for the breakdown in Congress, and why Allen believes the true answer lies in the parties’ very different worldviews. Today we see specific examples in budget policy, the Iraq War, health care, and climate change. Tomorrow we’ll conclude with what Allen proposes to enable Congress to function again.

Note: Tom Allen represented Maine’s 1st District in the U.S. House for twelve years. He graduated from Bowdoin College, was a Rhodes scholar at Oxford with former President Bill Clinton, and graduated from Harvard Law School. He served on the staffs of Maine Governor Kenneth Curtis and Sen. Edmund Muskie and, after practicing law, was elected to the City Council of Portland, Maine. In 1996 he was elected to Congress, where he served on the House Energy and Commerce and House Budget Committees, chaired the House Affordable Medicines Task Force, and served on the House Oceans Caucus. After his unsuccessful 2008 challenge against incumbent Sen. Susan Collins, Allen was appointed president and CEO of the Association of American Publishers.

Our Exceptional Nation and Exceptional People

Yesterday we saw one key to the Republican worldview: their Zero-Sum Freedom principle. This focuses solely on negative liberty (absence of interference) and ignores positive liberty (presence of opportunity), thus “more government” always means “less freedom.”

Allen identifies another key Republican principle, that of Exceptionalism. Most of us have heard discussions about American Exceptionalism, the notion that the U.S. has a unique and specific world mission to spread liberty and democracy. Allen argues that Republicans also embrace individual exceptionalism, whose clearest expression may be this letter from Austrian School economist Ludwig von Mises to Ayn Rand, where Mises states:

You have the courage to tell the masses what no politician told them: you are inferior and all the improvements in your conditions which you simply take for granted you owe to the effort of men who are better than you.

By this principle, innovation and improvement are the product of exceptional individuals and they deserve the rewards of their individual exceptionalism. The fact that many of these individuals were born into privilege does not disprove individual exceptionalism. Instead, it proves that individual exceptionalism is often inherited.

“Tax cuts pay for themselves”

The Exceptionalism principle, Allen argues, is the basis for Republican memes of “job creators” and “makers vs. takers.” Combine it with the Zero-Sum Freedom principle and you get the Republican theory of supply-side economics and their unshakeable belief that “tax cuts pay for themselves.” In that theory, reduced regulations and tax cuts – especially for the wealthy – liberate those exceptional individuals to innovate and produce the technological improvements and economic growth that benefit the rest of us.

While serving on the House Budget Committee, Allen heard that argument often. Republicans argued that despite clear evidence to the contrary. And further evidence that tax cuts do not pay for themselves has emerged since the Bush era, yet in 2011 Sen. Jon Kyl (R-AZ) said:

My view, and I think most of the people in my party don’t believe that you should ever have to offset a tax cut.

Small wonder that, during one Budget Committee hearing, Allen wrote “Wonderland” in his notes. He also argues that the 2001 and 2003 Bush tax cuts were among the most devastating policy decisions in recent history, especially combined with the Bush administration’s other budget (and life) buster….

“We’ll be welcomed as liberators”

Allen was shocked when he learned that the National Security Council never met to discuss the decision to invade Iraq. Instead, President Bush made the decision on his own, with input from Vice President Cheney, based on intelligence reports that, in the words of the Downing Street Memo, “were being fixed around the policy.”

Meanwhile, Vice President Cheney boldly declared “We’ll be welcomed as liberators,” a phrase Allen describes as “a triumph of wishful thinking.” The vice president was not alone in his belief. Allen took part in a discussion between Sens. Kyl and Chuck Hagel as they returned from a European defense conference. “We’ve shown what we can do in Afghanistan. Now we’ll show the Iraqis. Pretty soon, these countries will learn they just can’t have these kinds of weapons,” Allen recalls Sen. Kyl saying. Hagel replied, “I disagree, Jon. It’s more complicated than that. There are always unintended consequences.”

Hagel was not alone in arguing for caution. Secretary of State Colin Powell told the president “When you hit [Iraq], it’s like crystal glass. It’s going to shatter. There will be no government. There will be civil disorder.” In Hard Lessons: The Iraq Reconstruction Experience, Special Inspector General Stuart Bowden found the State Department had concluded:

[I]nvading Iraq and replacing its totalitarian regime would require a U.S. commitment of enormous scope, carried out over a period of years, engaging everything from Iraq’s judiciary to its electrical grid.

The Bush administration rejected that view, “convinced that by limiting the military’s post-war role in Iraq, the United States could avoid the ‘culture of dependency’ that had taken root in other post-conflict interventions,” Bowden found. Acting on unshakeable principles, the president ordered an invasion without sufficient force to protect the Iraqi people when their government was dismantled … and unleashed a civil war that killed over 4,486 Americans and at least 100,000 Iraqis.

“Let me tell you what we’re not going to do”

Allen highlights that phrase “culture of dependency” because it echoes the Zero-Sum Freedom that principle Republicans argue so insistently. And when they don’t, right wing zealots like Michelle Malkin howl that “big-government Republicans show appalling indifference to the dire market disruptions and culture of dependency that Obamacare schemes have wrought.”

Allen had left government by the time the Affordable Care Act made its slow and tortured way through Congress. He had been involved in health care policy during his time in the House, working to give senior citizens more affordable access to prescription medications. His work led to the Bush-era Medicare Part D, although Allen was disappointed that bill did not allow the government to bargain with drug companies for better prices. So he wasn’t surprised when conspiracy theories about “death panels” and populist cries of “Keep your government hands off my Medicare!” erupted in 2009. These memes merely echoed the Zero-Sum Freedom principle that he had witnessed for 12 years in the House.

More dismaying, for Allen, was Republicans’ refusal to engage the detailed facts about health care policy. He cites this July 2012 Chris Wallace interview with Senate Minority Leader Mitch McConnell on Fox News Sunday. Asked how Republicans would cover the 30 million Americans without health insurance, Sen. McConnell replied “that’s not the issue.” Wallace pressed on:

WALLACE: You don’t think the 30 million people who are uninsured is an issue?

MCCONNELL: Let me tell you what we’re not going to do. We’re not going to turn the American health care system into a western European system.

Allen writes:

It would be hard to find a clearer contemporary example of how ideological principles devalue people. Tens of millions of uninsured are “not the issue” because a libertarian ideology has no room for their problems and no respect for “western European” systems that provide near-universal coverage at lower cost and with better health outcomes than our own system.

What Republicans fought and are still fighting to avoid, in Republican messaging guru Frank Luntz’s terms, was “a government takeover” of health care. Never mind that the Affordable Care Act did not propose any such thing. When pressed to explain why his argument bore no relation to the facts, Luntz replied “I’m not a policy person. I’m a language person.”

“Government can’t control the weather”

Luntz does not limit his ideological blindness to health care. Consider his 2003 memo on climate change:

The scientific debate is closing [against us] but not yet closed. There is still a window of opportunity to challenge the science. Voters believe that there is no consensus about global warming within the scientific community. Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate.

A decade later. despite clear evidence that manmade climate change is real, Republicans still insist that, as Sen. Marco Rubio (R-FL) put it this week, “government can’t control the weather.”

Some of that, Allen argues, is Republican fealty to supporters in the fossil fuel industry. But it is compounded by their ideology As Cato Institute founder Ed Crane argued, “global-warming theories give the government more control of the economy.”

Simply, Republicans recognize that climate change, if it is real, will require government action. But “more government” means “less freedom,” always, as a matter of principle. Thus, because its only solution would be intolerable, climate change cannot be real – and scientists whose evidence supports it must be attacked as ideologues who want to “impose socialistic, globalist control over nations, businesses, and your lifestyle” – all summarized in Sen. Rubio’s blithe “government can’t control the weather.”

There are real-world costs – financial as well as in opportunity, lives, and the habitability of entire regions of our planet – for these “dangerous convictions.” Those costs are too horrific to ignore, and we cannot simply nod and accept that Republicans believe what they say, regardless of evidence. We must find our way through that to a government that can function in Realworldia … and tomorrow we’ll discuss how to do that.

(Crossposted from Blogistan Polytechnic Institute (BPICampus.com))

(By NCrissie B)

The media reporting a 5-4 Supreme Court decision upholding the Affordable Care Act is not wrong, but it’s not exactly right either. In their 193-page decision, the Court weighed several issues: whether the case was premature under the Tax Anti-Injunction Act, whether the individual mandate was authorized by the Commerce, Necessary and Proper, or Taxing and Spending Clauses, and whether the Medicaid expansion was a legitimate inducement or an unconstitutional coercion of state action. The votes were different on each issue, and those differences may be significant in future cases.

Was the case premature under the Tax Anti-Injunction Act? NO (9-0)

The Tax Anti-Injunction Act (TAIA), first passed in 1867 and reenacted in 1954, prohibits courts from blocking the collection of taxes enacted by Congress. Instead, individuals must first pay the tax. Then, if they have legal grounds to object, they may petition the IRS for a refund and file a lawsuit if the IRS does not respond. Thus, a tax cannot be challenged in court until it has been paid.

As mechanism for enforcing the individual mandate is a “penalty” paid to the IRS, and as neither the mandate nor the “penalty” take effect until 2014, no one has yet paid that “penalty.” Some legal scholars argued that – because the “penalty” looks a lot like a “tax” – the individual mandate could not be challenged until the “tax” was due and paid, in 2014. The Obama administration did not raise this defense, but the Court solicited briefs from other parties and considered the issue.

– Chief Justice Roberts held that as the TAIA was enacted by Congress, Congress has the authority to decide whether the TAIA will apply to a law. Congress expresses such decisions by using or not using “tax” and related words in drafting a law. As Congress did not term the individual mandate “penalty” a “tax” – Chief Justice Roberts held – Congress did not intend the TAIA to apply to that provision and the challenges to the ACA were not premature. No Justices dissented.

Was the individual mandate authorized by the Commerce, Necessary and Proper, or Taxing and Spending Clauses? NO (1-3-1-4), NO (5-4), YES (5-4)

The Obama administration claimed the individual mandate was authorized by the Commerce Clause, the Necessary and Proper Clause, and/or the Taxing and Spending Clause. Note that the Court did not have to find the individual mandate was authorized by all three or even two of these three clauses. Any one would suffice. The Court split differently on each clause:

• Commerce Clause: NO (1-3-1-4)– Chief Justice Roberts held that while Congress has long regulated the supply of goods and services, Congress may not regulate the demand for goods and services under the Commerce Clause. That is, Congress may regulate market “activity,” but not market “inactivity.” Contrary to some media reports, Chief Justice Roberts did not “narrow” Congress’ authority under the Commerce Clause. He simply refused to expand that authority to cover demand or “inactivity.”

  – Justices Scalia, Kennedy, and Alito concurred, making essentially the same argument (but with more mentions of broccoli).

  –Justice Thomas concurred in a separate opinion that would have narrowed Congress’ authority under the Commerce Clause.

  – Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented, writing that almost everyone buys health care at some point, either through health insurance or “self-insurance.” Thus, they argued, almost everyone “participates in” the health care market and Congress may regulate that under the Commerce Clause.

• Necessary and Proper Clause: NO (5-4)– Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito in a separate opinion, held that the Necessary and Proper Clause could not stand alone to authorize an act of Congress that was not authorized under another provision of the Constitution. It was not, in Chief Justice Roberts’ wording, a “by any means necessary” provision.

  – Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented, arguing that the guaranteed issue and community rating provisions of the ACA would fail without the individual mandate, thus the mandate was “necessary and proper.”

• Taxing and Spending Clause: YES (5-4)– Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that the individual mandate could reasonably be read to establish a tax for people who did not buy health insurance. While Congress did not invoke the TAIA by calling the “shared responsibility fee” a tax, Chief Justice Roberts held that the TAIA issue was a statutory decision of Congress, while the Taxing and Spending Clause issue was a separate constitutional decision for the Court.

  – Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing the Court must either find the “penalty” or “shared responsibility fee” was a “tax” (making the entire case premature under the TAIA) or was not a “tax” (making the individual mandate unconstitutional).

– Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan held that because the individual mandate was constitutional under the Taxing and Spending Clause, there was no need to consider whether the rest of the ACA could survive without the mandate.

– Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that Congress had not specified that the rest of the ACA could be upheld without the individual mandate, and indeed that the rest of the ACA would be unworkable without the mandate. They would have overturned the entire ACA.

Did the Medicaid expansion induce or coerce state action? PENALTY NARROWED: 3-2-4

– Chief Justice Roberts, joined by Justices Breyer and Kagan, held that the Medicaid expansion provision – which would have withheld all of Medicaid funding unless a state expanded Medicaid eligibility to all adults earning less than 133% of the federal poverty level – was indeed unconstitutionally coercive. Cutting off all federal Medicaid funds to states that did not expand eligibility would have gutted their budgets, forcing them to end existing Medicaid programs, raise taxes to make up for lost federal funding, or cut other state programs. However, they held that the provision was constitutional if read to apply only to new federal funds designated for expanded Medicaid eligibility, and thus they interpreted the provision that way.

– Justices Ginsburg and Sotomayor dissented in part, arguing that the Medicaid expansion provision was an inducement similar to previous federal changes in Medicaid, and concurred in part, accepting Chief Justice Roberts’ remedy.

– Justices Scalia, Kennedy, Thomas, and Alito concurred in part, agreeing that the Medicaid expansion was coercive rather than an inducement, and dissented in part, arguing the only remedy was to strike the entire Medicaid expansion provision.

Tomorrow we’ll discuss what the decision means – and what it doesn’t – for the future of the ACA, Medicaid, and the Commerce Clause.

(Crossposted from Blogistan Polytechnic Institute (BPICampus.com))