Archive for March, 2012

A Court Remand for Affordable Health Care

March 26, 2012

   While there is no precedent that I know of for this, it would be of great benefit to the country if the Supreme Court remanded the Affordable Health Care Act back to Congress without a decision.   Any ruling that does not uphold the law in its entirety will make it useless anyway, so it will go back to Congress no matter which side claims victory.  Recent commentators have suggested that severability is an option; it is not.  I don’t know anyone who has put forward a scenario describing how the law will function without the individual mandate, and I don’t think anyone can.  Without it, the entire funding mechanism is stalled because, put simply, the machine needs fuel to run.  The funding must be continuous and predictable, like any other energy source.

   But what will such a remand “decision” look like?  Well, the Court remands cases all the time, only it reverses the appellate court’s decision first, and sends it back there for a new ruling in light of its instructions.  The difference this time is it goes straight back to Congress exactly as it is, but with the proviso that no decision will be made until Congress has another opportunity to create something that, whether good or bad, can at least function within the confines of legitimate governmental authority. And there won’t be any instructions.  This is important because the law is an entirely new creation.  It is a demonstration by the American people that they want Congress to do something about this problem, and this law is the result.  It was made into law properly; that’s not the challenge here. No, it is being challenged because it contains a fatal  Constitutional  flaw, and the highest court in the land cannot avoid having to recognize that.  That is why the individual mandate must be struck down.

   (Parenthetically, what I’d like to see happen is if the Court struck down Wickard v. Filburn too. Dream on!)

   But there is also unique opportunity here.  Since the law has not gone into effect yet, there is time for Congress to amend it on its own with no consequences, since it has had no practical impact on any citizen, and there will be no refunding of revenues.  True, the argument has arisen that review can be delayed because the Anti-Injunction Act forbids hearing challenges to the “assessment or collection” of  a tax until after it has been paid. However, this point is inapt because the individual mandate is clearly a penalty, not a tax.  Therefore, the case is ripe and ready today, and the Court will have to vote on it up or down unless it creates a novel alternative.

    I think a remand without decision will be favorably received.  There is nothing in the Constitution that forbids it, and it will demonstrate a proper use of the Court’s powers.  It will simply say that the matter is tabled, in effect, pending Congressional action by a date certain — say six months after the seating of the new Congress — and that it can be resumed when and if the Petitioners reintroduce the case at that time.  Of course, Congress may do nothing, but that certainly won’t reflect badly on the Court.  Congressional deadlock seems to be normalcy nowadays.  But I don’t think that would happen.  The country would welcome a gesture, by at least one of the three branches, that the will of the people counts more than partisanship.  The Court could take a leadership role by declaring its deference to Congress because it is the branch most directly answerable to the citizenry.  And in the wake of public approval, I think Congress would rise to the opportunity.

   One final word.  In my cursory research on Congressional remands, I could find no precedent.  But a 2010 blogpost by Dr. Bill May, in, raised this proposal outright — in a different context — and I am grateful for that, as I am now a devoted fan.



March 23, 2012

 •  The Department of Labor has a fast triumph in the 3 million bucks settlement of various discrimination claims against FedEx.  The  NYTimes piece on Thursday (3/22/12) was so bare that you might have been reading about bacteria under a microscope.  Of  course none of these “victims of discrimination” were identified, but the summary was so bland and colorless that you couldn’t even imagine what supposedly “unlawful” conduct was under review.  It just dumped a hodge-podge of sexism, racism, ageism and what-not on the floor, and FedEx fell to its knees.  “Three million? Chump change!  Now they’ll leave us alone for a few years. Business as usual.”

    What is most offensive is that the deal stinks whether you believe that business should be scrutinized and disciplined for “discriminatory” acts in labor management, or, from my perspective, that the entire process is political chicanery of the highest order, and is simply an executive power grab!  Either way, the parties get gold stars, but the public is prevented from seeing the truth.  Once again, these macro “class actions” are a carefully rehearsed showpiece that sidesteps important questions about the limits of governmental regulation.

 •  I’m going to miss Luck.  Yes, I know the first season is still being shown, but I don’t see how it can survive the deaths of those three horses.  But I can’t say that I’m surprised.  It was a very ambitious undertaking to use genuine racehorses in “simulated” races on a real track.  These animals didn’t know from “simulation”.  It was probably more  dangerous than real racing because the film was shot in a number of short racing segments that would be edited into a single race.  The animals were obviously going to get  confused and frustrated, and more prone to injury.  Still, I watched because David Milch knows how to pull you into the lives of these odd characters, which makes for gratifying drama.  The cast was great; probably career peaks for Dennis Farina and Richard Kind.

 •  A good two months before The Artist even opened, my friend John said it would win the Oscar.  I think it’s a fine, entertaining movie.  But why do people call it a love story?  The film is about a popular silent film star, a devilishly handsome and vain man who is adored by legions of women,  whose career is ruined when the “talkies” take over.  His wife leaves him, but he doesn’t seem to mind as long as he has the companionship of his dog.  A beautiful newcomer falls in love with him, and they are kept apart, supposedly, while her career flourishes, and his sinks like a rock.  At the end, boy gets girl because they become a wildly successful musical team, suggesting Rogers and Astaire.

   But while the story connects the dots for a traditional romance, we know something is missing.  What’s missing is that this guy has no use for women except as his leading ladies.  We never see him show passion for anything but his career and his cute little dog.  If the film didn’t end where it did, we’d see that his latest love has no more luck than the others.

“College-ready” II

March 12, 2012

   Suddenly we are deluged with opinions on the value of a college education.  The floodgates have opened, and it seems like every newspaper and journal has some expert or other weighing in on how important it is for the future of the country, how much more it means for lifetime earnings, blah, etc.  One Times Op-Ed trotted out Ben Franklin’s definition of true education as “…an inclination join’d with an Ability to serve Mankind, one’s Country, Friends, and Family; which Ability…should indeed be the great Aim and End of all Learning.”

   Sounds like a good starting point to me.  Not having seen the full quote, I’d venture that the “inclination” represents a personal drive, a curiosity about the laws of the universe that can be “join’d” with one’s sense of duty to others.  In any case, I think Ben had it covered, and I’d be more than willing to pledge some of my precious tax dollars to help someone achieve that.

   But contrast this with Frank Bruni’s column (2/27/12), where he mocks Rick Santorum’s “lament” about college as based on its threat to the “indoctrination” he practices with his own family.  The threat is because college “…does what it’s supposed to do, encouraging young adults to survey a broader field of perspectives, exhorting them to tap into a deeper well of information, inviting them to draw their own conclusions, and allowing them to figure out for themselves what they believe and who they are.”

   How’s that again?  Survey a broader field of…perspectives?!!  Is that what we want?  Whatever happened to “to serve Mankind”?  Somehow, at least in Bruni’s definition, there is no function to prepare a young person for citizenship and independence.  He omits, tellingly, the acquisition of skills that have value in the economy, and which form the basis for a person’s fullest service to society.  Instead, he seems to view education as some sort of personal quest to develop a set of standards by which to judge society, but without any obligation to participate oneself. 

   I’m not suggesting that his definition is part of the government’s current pro-college policy.  Just the opposite, in fact.  Most of the debate now is concerned with whether a college degree  is sufficient to secure a middle-class lifestyle, and to give us an edge in the global marketplace.  Bruni’s vision stands out because it is so out of fashion.  No, the real struggle will be to devise a national policy that promotes a new function for higher education, one that is cognizant of the enormous changes taking place in our economy.  I haven’t heard anything from the administration that shows any awareness of this.

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