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Posts tagged ‘America’

On the government shutdown

Reasons put forward in defence of the Democrats don’t stack up. Both sides are to blame.

This could be another one of those “blame the system” posts. That’s because I agree: I think America’s constitution is at fault for the current shutdown mess. But rather than ranting about how America’s constitution requires too much agreement for anything to happen, I want to look at a different question. Given how the system is, how do we know who’s at fault for the stalemate?

For this to work, the principles of the system must be an axiom, not a proposition. By that I mean, when examining how players are behaving, there is no question about whether the system is a good one. We expect only that players follow the system (or at least its spirit), not that they act “above” it. Otherwise there’d be no way for any player to know what unwritten “rules” they should heed.

What are the principles of the system? That’s a big question in itself, but most commentary seems to assume that compromise is one of them.

So here’s my first observation: defences of the Democrats’ unwillingness implicitly concede that they are, in fact, unwilling. They either argue that the Democrats have a right not to compromise, or they play with semantics, arguing that buckling even slightly on Obamacare wouldn’t be “compromise”, but something more drastic.

Here’s my second: the non-negotiable parts of both sides’ positions are incompatible. If the Republicans insist at a minimum on changes to Obamacare, and Democrats insist at a minimum on no changes, then compromises on anything other than those minimums are meaningless.

The democratic mandate
The first argument defending the Democrats is that, having won the White House and the Senate, they have a mandate to enact their policy. That’s true, but the argument holds for everyone, including House Republicans.

Those who think House Republicans should stay out of the way should consider a parallel in Australia. The newly-elected right-wing prime minister, Tony Abbott, wants to repeal the carbon tax. But left-wing parties still command a majority of the Senate. Mr Abbott has implored them to respect his “mandate” to enact his party’s manifesto. Do the Senate Greens have an obligation to abandon their own constituents’ mandate for the House majority?

The point is that a democratic mandate for one politician doesn’t nullify a democratic mandate for another. House Republicans, too, have a mandate to represent their constituents. If the electorate cared that much for Obamacare, why didn’t they elect a Democratic House majority?

Does it matter that the House constituencies are gerrymandered? It makes the system troublesome, but that’s a separate issue. Also, it’s hard to predict what would happen if the system was a good one, since it affects how and whether people would vote. So the idea that people should act for how the system should be requires at least a great deal of speculation, if not a huge lack of clarity on when politicians should put their true stances aside. Life would be perpetual second-guessing if we ignored the system in favour of how we think it should work.

The desirability of the policy
The second argument relies on normative statements about how good, bad or extreme the respective parties’ positions are. In essence, the Democrats’ position is good and rank-and-file Republicans are extreme, therefore, it is Republicans who aren’t bending, not Democrats.

I agree that Obamacare is a good policy and that its repeal or delay would be a bad one. But once you start factoring that into an assessment of compromise, you lose what compromise means. Normally “compromise” means both sides needing to give in a little. If the better side is allowed to fulfil that obligation by being themselves, then the question is not about compromise, but which side has the better policy—a huge debate in itself.

It’s not unfair to admire the Democrats for sticking by a good policy. It’s just that that doesn’t absolve them of responsibility for the government shutdown. People differ over the ACA’s merits, but everyone agrees that the shutdown is the much bigger harm. If the idea is that the parties should compromise to avert a bigger calamity, then having the “better” side isn’t an excuse to stand firm.

Technical matters
It doesn’t matter that the law’s already enacted. For that to be a factor, you would have to believe that Congresses can bind future Congresses, at least partly. Normally, we accept that Congresses can repeal laws passed by previous Congresses; there’s no reason why the ACA is different.

Anyone who thinks that the Supreme Court validated the law should think again, too. Chief Justice Roberts’ opinion said explicitly that “the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” Constitutional doesn’t mean good.

To be clear, those aren’t reasons to support the Republicans. They’re just not relevant to anything, full stop.

Why you should blame the Republicans
I haven’t bothered to argue that rank-and-file Republicans are partly to blame. I think that’s self-evident: like the Democrats, they are asserting a position and refusing to bend on incompatible minimums.

There is one additional factor that is unprecedented and falls squarely and solely on the Republicans. Normally, you would expect a refusal to pass a budget (or continuing resolution) to be over problems with the budget (or continuing resolution). Here, the Republicans’ demands aren’t related to the budget, but the individual mandate, which isn’t at heart a matter of government spending. With that in mind, there’s certainly reason to say that Republicans are acting irresponsibly. Traditionally, the correct forum in this system would be to block directly relevant legislation, win the next elections and repeal the law through normal processes.

But gives-and-takes happen in politics happen all the time, especially in a system with as many checks and balances as America’s. And it doesn’t all of a sudden give the Democrats the right to engage in a dangerous game of chicken. We should criticise the Republicans for opposing America’s bravest healthcare reform in decades, but the government shutdown is a result of stubbornness from both sides, not just one.

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On the Obamacare decision and enumerated powers

The reasons the Supreme Court gave for upholding Obamacare are tenuous at best.  It’s another reason why enumerated powers are a bad idea.

It is no exaggeration to say that the President Obama’s health reforms survived by the skin of their teeth.  Liberals hailing the Supreme Court’s decision should bear that in mind.  Not only were the justices divided 5–4 on whether to uphold the Patient Protection and Affordable Care Act (ACA), they rejected (5–4) the government’s main defence: that it was allowed under the Commerce Clause.

The ACA was saved only when Chief Justice Roberts was willing to interpret the “penalty” under the individual mandate as a “tax”.  In doing so, he joined the four liberal justices who (unlike him) did accept the Commerce Clause argument, to deliver Mr Obama his victory and a huge sigh of relief.

The Chief Justice went to great pains to justify his swing.  Construing the individual mandate as a tax is testy because the ACA doesn’t describe it as one.  The minority in their joint dissent refused to do so, saying that “we cannot rewrite the statute to be what it is not.”  But the Chief Justice cited an 1895 case which held that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”.  He then applied the duck test, giving a full seven pages of analysis about whether the “penalty” looks and quacks enough like a “tax” to be a tax.  His conclusion: it was, so is allowed under the Taxing Clause.

I agree with the Chief Justice, but have to admit it’s a long stretch for justification.  It could just as easily—and reasonably—have gone the other way.  Many commentators have gone as far to suggest that the Chief Justice may have originally voted to strike down the law, then changed his mind last minute.  Any Obamacare supporter who feels vindicated by the decision should think again.

Good policy? Who cares
The court, of course, doesn’t ask whether it’s good policy.  Its job is—only—to decide whether the law is permitted by the constitution.  If it’s not, no matter how laudable the policy, it must invalidate the law.  That should be enough to raise eyebrows about the system.

Further, America’s constitution is fiercely prescriptive.  By default, Congress has no power, unless the constitution expressly authorises it.  So the federal government has to justify everything it wants to do under the enumerated powers section (which allows, among other things, for Congress to “establish Post Offices”).  This was written in 1787.  The courts have construed the powers broadly, but not without limits.

But it’s fact that the question matters in the first place that makes enumerated powers a bad idea.  Time and time again, when it comes to controversial policies, America is consumed by whether something is constitutional.  Opponents to a policy argue “it’s unconstitutional” as if that automatically proves “it’s bad”.  Liberals and conservatives are both guilty of this: consider the opposition in California to banning gay marriage last year.

Just as “constitutional” doesn’t mean “good”, “unconstitutional” doesn’t mean “bad”.  This isn’t to say America’s citizens don’t debate the merits of policy.  They do, for sure.  But they’d do that better if they weren’t fussing about what the Framers of 1787 would have wanted.  By enumerating federal powers, America’s constitution denies its own people the ability to make its own decisions by electing politicians who can do what they campaigned for.

It shouldn’t matter if it’s a duck
The Affordable Care Act should never have come down to the fiddly question of whether or not it’s a “tax”.  The only barrier standing in its way should have been convincing the legislature—for whatever reasons—that it’s the right thing to do.  We can be relieved that five justices decided to stay out of the way this time.  But it was breathtakingly close.  It should not breed confidence in America’s system of judicial review.

On Proposition 8, the Constitution and American values

The decision of a United States federal appeals court earlier this month that Proposition 8 violated the U.S. Constitution was, predictably, both celebrated and criticised.  At the same time, it was a perfect example of how the country’s constitutional model inhibits genuine debate.

The decision upheld the district court ruling of August 2010 overturning California’s Proposition 8.  Passed by voters in November 2008, that initiative amended the state’s constitution to restrict marriage to opposite-sex couples.  Proposition 8 overturned the state’s supreme court’s May 2008 ruling in In re Marriage Cases, which in turn found inconsistent with the state constitution Proposition 22, which had amended the state’s statutes similarly in 2000.

Sound complicated?  The American and Californian constitutions are designed to protect rights seen as fundamental.  In practice, the question of whether those rights are violated lies with judges in a journey through the appellate courts.  These judges, for good reason, are neither elected nor subject to the accountability that governs other public officials.  In effect, a handful of relatively aged people of a single profession often have the final calls over what citizens can and can’t do.

Not so obvious
These calls are hardly clear-cut.  In re Marriage Cases was a 4–3 split decision.  Perry v. Brown, the case which overturned Proposition 8, was split 2–1.  Indeed, many commentators believe the battle on gay marriage in California will go to the federal supreme court, with a likely 5–4 split, Justice Anthony Kennedy having the deciding vote and the others splitting on ideological lines.  Some note that the decision appears to have been written to resonate with Justice Kennedy.  Others note the decision was crafted to avoid broader constitutional questions altogether and limit the effect to California, perhaps to minimise the risk and consequence of overturn.

It’s hard, then, to see the judgements as resounding affirmations of universal rights.  Landmark decisions tend to split appellate courts: Roe v. Wade, which legalised first-trimester abortion, was 6–3; Lawrence v. Texas, which struck down sodomy laws, was also 6–3; Dred Scott v. Sandford, which in 1857 held that blacks could never be U.S. citizens, was 7–2; Adarand Constructors v. Peña, which made racial classifications subject to “strict scrutiny”, was 5–4.  Even learned judges, who we trust more than the collective citizenship, cannot agree.

A poorer dialogue
But it is not courts’ taking these matters completely beyond voters’ hands that is the scariest part of the political system.  Political debate in America is not about what is right or wrong, or good or bad, but what is American, un-American, constitutional or unconstitutional.  Consider these statements, relating to Perry v. Brown, emphasis added:

Today’s powerful court ruling striking down the infamous Prop 8 affirms basic American values
Evan Wolfson, founder and president of Freedom to Marry (ref: The Guardian)

It is about us.  It is about every one of us… Today we are more American because of this decision.
Ted Olson, lawyer against Proposition 8 (ref: The Guardian)

The panel’s ruling mischaracterized the purpose of marriage [and] failed to faithfully and fairly interpret the Constitution
Brian Raum, senior counsel for the Alliance Defense Fund (ref: Christian Post)

That prospect [of its going to the Supreme Court] underscores the vital importance of this election and the movement to preserve our values.
Mitt Romney, Republican presidential candidate (ref: LA Times)

Should the Supreme Court fail to heed the disastrous lessons if its own history… it will bear the burden of igniting a constitutional crisis of the first order.
Newt Gingrich, Republican presidential candidate (ref: LA Times)

Some people admire the way Americans stand by their constitution.  I would much rather the debate be about the effects of and principles behind a policy, than whether it is consistent with a document written more than two hundred years ago.  The case for gay marriage is premised on the idea, among others, that the state should afford all genuine loving couples the same legal recognition.  The case against relies on the notion, among others, that marriage loses some meaning when it is open to couples who can’t naturally found a family.  What about either case would make Americans “more American”?

A dialogue in which people constrain themselves to an immutable supreme document will always be more limited than one in which we are free to examine what is better or worse for any legitimate reason.  Codified fundamental rights may look nice but they, too, are arguable in application.  It is an unfortunate feature of America’s political system that those rights, as decided by unelected judges, are the be-all and end-all of everything.