AURORA AND PENN STATE

AURORA AND PENN STATE

A week ago the big news was whether the statue of Joe Paterno would come down at Penn State in the wake of the university's report that he and other higher ups had covered up Jerry Sandusky's child abuse.  Then, last Friday, a gunman opened fire in a crowded theatre in Aurora, Colorado, killing a dozen people and injuring over fifty. 

The two tragedies seemed completely disconnected.  Different crimes.  Different places.  Different victims.  But they actually have one thing in common.

Denial.

By us.

We have created a culture where individual responsibility is a paramount moral imperative but social or collective responsibility is denied at every turn.  If you look at the commentary on the defrocking of Paterno or on this week's announcement by the NCAA of the penalties it will impose on Penn State's football program, you may be struck by the sheer number of individuals who think these results are unfair.  The football team never molested a child and the players should not be penalized, so the commentary goes.  Maybe it was acceptable to take JoePa off his pedestal, they continue, but that is where it should have ended.

Now fast forward to the commentary on the tragedy in Aurora.  The reaction of many to those who suggest flaws in a legal regime that allowed the killer to confront his intended victims with ammunition magazines that allowed him to get shots off at the rate of 50-60/minute is the same.  Guns don't kill, people do; if only some of the theatre goers had been armed, the carnage would have been abated; in fact, said some, the law was part of the problem because it allowed those theatre goers to carry concealed weapons but prohibited those same theatre goers from firing them.

This is denial on a large scale.  And until we confront it, the tragedies in Aurora . . . or Columbine . . . or Tuscon will continue, and the disgusting crimes committed by the Sanduskys of this world will never be completely unearthed and eliminated as future possibilities.

It is well and good to condemn the Aurora shooter and Penn State's perverted assistant coach.  It is also well and good to condemn the college officials and Happy Valley icon for their head in the sand cover-up. 

But after we have done all that, it might be a good time to look in the mirror.

Intercollegiate football is a multi-billion dollar business.  Those football powerhouses bring in enormous sums to the universities that sponsor them.  In western Pennsylvania, Paterno was untouchable, and so was the football program he repeatedly put on the national map.  When he was told to resign by the university's President years ago, Paterno just ignored the demand.  When he finally retired, he was given a multi-million dollar severance package, complete with access to jets and luxury boxes.  Why?  Because in our cost-benefit world, JoePa was a football entrepreneur whose program funded libraries, endowed chairs, and kept State College more than afloat. 

No one could afford to say "no" to him  until a former FBI Director unveiled what was really going on.

By then, unfortunately, it was too late.

Last Friday, it was also too late in Aurora.  

There is no rational reason anyone needs or should be permitted to buy an ammunition magazine that can enable a firearm to  be unloaded with the rapidity of a sub-machine gun.  None! And the notion that we can even the scales and avoid these tragedies by allowing Joe Average the same firepower as any would be killer is simply ludicrous.  The Aurora gun man had outfitted himself head to toe in bullet proof vests and  body armor.  One reason the hundreds of theatre goers could not escape was that he was able to spray the crowd repeatedly with deadly bullets from his fast action  ammo clips.  Under those circumstances, it's impossible to see what well-armed victims could have done  -- if they got up to shoot, they would have been killed; if they succeeded in shooting, the body armor would have protected their assailant.  

And how many others would have died -- in this proposed 21st century version of the shoot out at OK Corral -- is not even considered.

Guns too are a mutli-billion dollar business in this country.  Because there are no truly protective national laws -- the assault ban was allowed to expire in 2004  --  we labor in an environment of patchwork state laws where gun manufacturers in low-control states grossly overproduce given the demand in those markets, knowing full well that the supply will inevitably (and illegally) find its way to the high-control states.  

Nevertheless, it is considered impossible to pass national gun control legislation given the NRA and a Supreme Court that has turned the Second Amendment into something it never was -- a right to bear arms unmoored from any need to provide for a well-regulated militia, which was that Amendment's original (and only) purpose.  Meanwhile, President Obama says his administration will not propose any further controls, and Mitt Romney --- who actually signed an assault weapons ban in Massachusetts when he was Governor -- claims no new laws, not even renewal of the old assault weapons ban which limited the size of ammo clips, are necessary.

We cheered for Paterno and those Nittany Lions for years.  And we have voted in those NRA-fearing Senators, Representatives, state legislators and Presidents for those same years.  

If we think there aren't more Sanduskys out there in the untouchable venues of intercollegiate sport , or more Auroras in a future beclouded by a distorted Second Amendment, we are in denial.  And until we confront the reality behind those tragedies, they will not end.

Because, as Shakespeare once put it, the fault is not just in our stars . . . 

It's in ourselves.

 

GOING SMALL

GOING SMALL

It was supposed to be historic and certainly was the most anticipated Supreme Court decision since Bush v.  Gore.  The result was also unexpected and therefore surprising

But in the end, if it lives up to all the hype, it will be for all the wrong reasons.

That's my take on National Federation of Independent Business et al. v. Sebellius, the decision issued by the Supreme Court last week on the constitutionality of the Affordable Care Act (ACA), a/k/a Obamacare.  

To begin, the decision contains a number of anomalies. 

One is that it violated the settled practice that High Court opinions generally avoid unnecessary arguments or holdings.  Lawyers call this unnecessary stuff dicta, a kind of judicial throat clearing generally done in the privacy of chambers rather than the pages of opinions.  But National Federation of Independent Business marches dicta into a judicial hall of fame.

Five justices, including the Chief Justice, decided that the ACA's individual mandate  was a constitutional exercise of Congress's taxing power.  Their take was that the penalty imposed on those who remain uninsured was essentially a tax, which Congress has the power to levy under Article 1, Section 8 of the Constitution.  Under that view, the individual mandate could be construed simply as imposing that tax on those who avoided insurance, rather than as mandating insurance coverage from those who would refuse it.  If you do not want to be insured, the claim goes, you do not have to be.   You just have to pay the tax (to defer the cost your free riding inevitably imposes when you get sick and go to the emergency room anyway).  

That ended the argument on constitutionality per se, and consequently there was no need for the Chief Justice to sally forth with his claim that the Act was not  Constitutional under the commerce clause.  But sally forth he did.  On the theory that he, Roberts, would have upheld the law under the commerce clause if he could have, so he had to first determine that he could not  . . . 

So that he could then find it Constitutional under the taxing power.

This, however, is no theory at all.

Because if it were, two centuries of Supreme Court jurisprudence go out the window.   Every case involving multiple claimed bases for Constitutionality necessarily presents the option of deciding them all.  Nevertheless, the practice of refusing to do so has -- until last week -- triumphed anyway. 

Another anomaly was the Court's market analysis, which was part of its unnecessary holding that the individual mandate was not a proper exercise of Congressional power under the commerce clause.  The Court focused on one ostensible market (the market in health insurance) while ignoring the other far more important one (the market in health care itself).  This was the only way the Court could get to its determination -- with which five Justices agreed -- that inaction (in the form of not insuring, which was what the mandate is designed to end) could not constitute the act of engaging in commerce.

The problem here, however, is that the insurance market is really not an independent market.  Insurance is simply a mechanism that health care consumers use to obtain and pay for health care.  Without the market in health care, there would be no insurance market.  Most importantly, those who refuse to buy insurance are not passively inactive in the health care market.  To the contrary, they are very active when they need care.  They march to the nearest hospital emergency room and get it.  And the rest of us then pay for it.  Consequently, the more accurate economic take on insurance refuseniks is not that they are doing nothing.  It is that what they are actually doing -- namely, self-insuring, or more accurately, "free riding" -- is running up the costs for the rest of us and for the system as a whole.  Those "acts" unmistakably affect commerce, and the Congress thus had the unimpeachable Constitutional right to regulate them.

Under the commerce clause.

Anomaly Number Three -- the Court's majority holding that the ACA's Medicaid expansion is unconstitutional because it gives the states no real choice other than to accept the expansion.  

This was truly poppycock.  For as long as anyone can remember, the federal government has had the right to offer states money in return for the states agreeing to be bound by the terms of the offer.  That is how Medicaid works, and has worked since its passage in 1965.  Last week, however, the Supreme Court junked that right.  Now, if the feds give the states the option of receiving money under federal terms, and the states accept that offer, the feds cannot later amend the offer (even if the original grant comes replete with a bold warning that the feds were retaining the right to do so) and condition receipt of all the funds on compliance with the newly amended program.  

The Gang of Five who held the ACA's Medicaid expansion illegal claimed that requiring the states to lose all their Medicaid money if they did not agree to the new expansion of eligible recipients --to those whose incomes were 133% of the federal poverty level -- constituted a "gun to the head" of the states and left them no option but acceptance.  It was OK, so the Court said, for the federal government to withhold the new money if the states did not cover those eligible under the new rule, but they could not lose their old Medicaid money.

This was ludicrous at two levels.   On the one hand, the "gun to the head" analogy pretty much dies once the actual terms of the ACA are examined.  Under it, the federal government pays for 100% of the costs of the newly eligible Medicaid recipients for the first two years the Act is in effect, and for 90% thereafter.  This is hardly a gun; it's more like a Congressional wet kiss. On the other, there really was no basis for the decision in any Supreme Court precedents, all of which have allowed the federal government to condition grants and to amend those conditions later on so long as the states were advised of that possibility in the first place.  

What the Court did, in fact, was to basically turn federalism on its head.  Now, instead of the federal government retaining the right to control how its (or the country's federal income taxpayers') money is spent,  the states get to say yes once, on one set of conditions, and the feds can never thereafter alter those conditions, even if they told you they could when they gave you the initial grant.  It's a bit like Mom and Dad being duty bound never to reduce the initial allowance they give the kids.

Contra the Gang of Five, this sort of behavior does not respect the sovereignty of the individual states.  It just institutionalizes (or Constitutionalizes) their dependence.

Which is not what conservative jurisprudence is supposed to be about.

So why all the anomalies?

It is difficult to avoid the conclusion that more is going on here.  Some have suggested privately that Roberts switched his vote in the last weeks after Sen. Leahy criticized the Court on the floor of the Senate.  Others have claimed that the decision itself puts new and not so hidden arrows in the conservative quiver (e.g., the commerce clause holding and the Medicaid expansion holding) that will come back to bite those who try to use the federal government to solve any national problems in the future.  Still others have raised Chief Justice Roberts to new heights, arguing that he has put the interests of the nation ahead of his party and, in the words of the New York Times's Tom Friedman, "gone big."

I vote for a modified version of the first and second options.

I think Roberts knows the Court has been losing its luster for some time now and is increasingly viewed as just another partisan operator in today's highly charged political environment.  Its decision to award the Presidency to George W. Bush in 2000 began this walk down the slippery slope of judicial partisanship, and the Citizens United decision in the last term (which unleashed unidentified and unlimited corporate money on the political process) more or less capped it.  Now the Court's public approval rating is in the thirties. 

Nothing like Congess, but worse than it has ever been.  

Roberts had to do something to reverse this trend and pulling the ACA off the Constitutional cliff may do it.  The best way to rebut a claim of partisanship is to do the unexpected.  No one expected John Roberts to uphold Obamacare.

So he did.

He, of course, also wrote a wacky and unnecessary commerce clause opinion that smacks of the sort of judicial ignorance of economic reality characteristic of pre-New Deal Supreme Court rulings .  In that world, manufacturing was not commerce; it just preceded it.  In the Gang of Five's world, marching to the emergency room is not commerce if you decide beforehand not to be insured (or, more probably, if an insurance company decides that for you).  And he also wrote an equally wacky attack on Medicaid expansion that Constitutionally binds the federal government to deals it never struck in the first place, and then makes those deals un-amendable unless the states agree to the actual amendment or unless those initial deals are so small that ending them does not really matter to the states in any case. 

The combined effect of these rulings over time will be to limit the federal government's ability to solve national economic problems.  Instead, the national government will be Constitutionally bound to make its programs small enough so that any offers to the states do not become too big to amend or improve.  The commerce clause -- which has more or less saved every piece of national economic legislation since 1939 -- will be  back in a danger zone where phony semantics substitute for real economics.  And the only thing left will be the taxing power.  Lots of luck with that.   

Because no one other than the cognescenti is reading all of Chief Justice Roberts's opinion right now, he gets credit for "going big."

When what he really did could turn out to be . . . 

Pretty small.