The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, March 29, 2010

Targeting Healthcare Reform

By Restricting the Things They Don’t Want Guaranteed by Federal Law, Republicans Might Also End Up Restricting Guarantees They Do Want

No, not the graphics on Sarah Palin’s website or a rash of threats against Democratic lawmakers – the targeting in question is by mostly Republican state Attorney Generals, who hope to strike down recently passed healthcare reform legislation by having it declared Unconstitutional in federal court.

The first challenge came from a consortium of thirteen states, consisting of Florida, South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Louisiana, Idaho, Washington and Colorado. This group filed suit immediately after President Obama signed the bill into law. The second challenge, filed a day later, was from Virginia, choosing to go it alone.

According to the joint suit, the new healthcare law violates “the core Constitutional principle of federalism upon which this nation was founded.” The Virginia suit agrees, arguing, “[It is] contrary to the foundational assumptions of the Constitutional compact.”

Despite the vehemence of the protests, conventional legal wisdom says these challenges have virtually no chance of succeeding because the Constitution’s commerce clause indisputably establishes the precedence of federal laws over state laws.

“They can sue but I can't imagine a scenario in which a judge would enjoin the implementation of the federal healthcare bill,” maintains Lawrence Friedman, a Constitutional Law Professor at the New England School of Law in Boston. “Federal law is supreme. There's really no room for doubt that federal law controls.”

The challengers disagree or at least insist upon exceptions to this dictum. Their arguments are two pronged.

First, the suits disagree the commerce clause is so board as to give the federal government power to force an individual to buy something, particularly something that individual does not want. “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage,” the Virginia suit reads.

“Just being alive is not interstate commerce,” adds Virginia Attorney General Ken Cuccinelli. “Never before in history have we been required to purchase something.”

Some legal experts believe this argument has merit. Professor Randy Barnett of the Georgetown University Law Center notes that federal courts have never cited the commerce clause as justification to “require a person who does nothing to engage in economic activity.”

Second, the suits call upon the protections of the Tenth Amendment, which says powers not granted to the federal government by the Constitution remain reserved for the states.

Michael Boldin, founder of the Tenth Amendment Center, points to medical marijuana as an example in which states have successfully circumvented the federal government. Fourteen states currently allow the use of marijuana for medical purposes, even though federal law prohibits its use under any circumstances.

“To me what that indicates is when there are enough people refusing to comply with the federal government and enough states passing laws that also refuse to comply, it is very difficult for the federal government to enforce their laws,” Boldin said.

While Boldin’s take on this matter is admittedly biased, other legal experts agree with his core principle. Dave Roland, a lawyer and policy analyst at the Show-Me Institute, a nonpartisan think tank in Saint Louis, said state constitutional amendments geared toward creating new rights for individuals could challenge federal healthcare mandates.

“I think there is a very distinct possibility that the Supreme Court might say that where you have a freedom secured by a state constitution that it might warrant protection, even against a federal statute,” asserts Roland.

Those favoring healthcare reform have ready counters for each of these arguments.

Where the commerce clause is concerned, they contend the federal government has power to regulate activities that have a cumulative effect on the economy. Since the federal law requires all uninsured brought into national risks pools in order to succeed, the federal government can Constitutionally regulate their activities.

“When uninsured people get sick, they rely on their families for financial support, go to emergency room [often passing on costs to others], or purchase over-the-counter remedies,” explains Professor Jack Balkin of Yale Law School. “All these effects are economic.”

Other legal scholars argue the insurance requirement constitutes a tax, as opposed to a personal mandate, and that the Constitution gives Congress broad power to tax.

In the case of medical marijuana and the Tenth Amendment, the federal government might withhold enforcement out of humanitarian concerns, allowing states to protect the rights of suffering individuals at the expense of a total ban. This is exactly what would come from providing healthcare coverage to those currently uninsured – requiring similar restraint exercised by the states.

Challenges to federal restrictions tend to succeed when the restrictions place an undue burden on fundamental rights. As Professor Mark Hall of Wake Forest University observes, “There is no fundamental right to be uninsured.”

Those supporting healthcare reform think they have unearthed a devastating “gotcha” for Republican opponents. During the failed attempt at reform in the 1990s, many Republicans and other conservatives touted an individual mandate as a healthy free market alternative to the “socialistic” single-payer model proposed by Hillary Clinton. Today, the same idea has somehow morphed into socialism.

Yet it was first and foremost a Republican idea, according to health economist Mark Pauly of the University of Pennsylvania's Wharton School. Democrats dream of campaigns in which they can accuse Republican opponents of voting for individual mandates before they voted against them.

They may be missing another smoking gun – quite literally!

Any federal court challenge of healthcare reform will eventually make its way to the Supreme Court. Republicans are counting on conservative Justices to rule that states rights can trump federal authority where healthcare reform is concerned. Yet in the pending case of McDonald v. Chicago, they are counting on the same Justices to rule just the opposite regarding the right of states to institute gun bans versus a federally mandated right to bear arms. Everyone expects the Court to incorporate this federal right to states but both sides agree much litigation remains over what constitutes reasonable restrictions.

Linda Greenhouse, a close watcher of the Court, notes that Chief Justice Roberts “is an acutely image-conscious Chief Justice, as watchful and protective of the Supreme Court’s image as he is of his own.” Roberts is on record with strongly worded dissents against state rights in the cases of Massachusetts v. Environmental Protection Agency and Gonzales v. Oregon. Granted, these were both for powers – regulating global warming and physician-assisted suicide – that he believes government should not possess at any level.

If Roberts allows his fellow conservatives to deny state restrictions on gun ownership while simultaneously upholding similar restrictions on healthcare reform, he will go down in history as the most activist conservative jurist to date. Consistency in this matter will surely weigh heavily on his mind, both now and in the future.

To this extent, the stronger/better arguments that Republican state Attorney Generals make now against federal mandates for healthcare reform, the more they may pave the way for more repressive restrictions on gun ownership. If a majority of state voters wants such restrictions, what is the difference whether the will of the people is against gun ownership or healthcare reform? How does federalism apply in one case but not the other, besides obvious partisan ideological preference?

Some argue that allowing the federal government an individual mandate for healthcare reform opens a slippery slope in which the federal government gains unlimited power to regulate anything. Yet far more random and dangerous is allowing popular votes to decide what aspects of the Constitution each state chooses to reject and which it chooses to follow. It is not hard to imagine that most will choose to reject any costs or restrictions but embrace any privileges or benefits.

Republicans may want to think twice about placing healthcare reform in their sights. When they pull the trigger, they may find the only thing they have shot is themselves in the foot.

Wednesday, March 24, 2010

March of the Mob

Republicans Weren’t Wrong to Lead Opposition to Healthcare Reform; It Is How They Led

The terms “nigger,” “faggot,” and “baby killer” deserve characterization as hate speech. They are ugly words, whose only purpose in utterance is inflaming the passions of both the speaker and their targets beyond reason. When some healthcare reform critics hurled them at various Democratic legislators last weekend, it is easy for proponents to label all opponents as ignorant and prejudiced. It is easy but also wrong.

For their part, conservatives insist such barbs are the products of a few extremist bad apples, utterly unrelated to their movement as a whole. This is wrong as well.

In addition to being ugly and despicable, the epithets in question are also hyperbolic and this says a great deal about those who resist healthcare reform and those who lead them. To be sure, some use racist, homophobic, and other accusatory words out of genuine stupidity and hatred. However, ordinary people, who would normally never contemplate using such words, may also voice them in moments of extreme distress. Unable to make their views prevail in Congress, feeling their voices were unheard, they struck out in a manner as cathartic to them as it was offensive to others.

These are words spoken in anger but anger generated not by racism or hatred but rather fear and despair.

As Richard Cohen wrote in yesterday’s Washington Post, “This battle was never entirely about healthcare . . . There is something cleaving this country, something represented by the election of Barack Obama –the change he either promised or threatened, take your pick – and the hyper-exaggeration of the ideological threat the man represented . . . What was once a white Protestant nation is changing hue and religion . . . The protesters were protesting healthcare legislation. But they feared they were losing their country.”

While Democrats are elated after winning a long fight they seemed doomed to lose as little as a month ago, they deserve a significant share of the blame for helping create the acrimony that marked this contest.

Writing in the Atlantic, Clive Crook records two fundamental Democratic mistakes. First, “It is right to provide guaranteed health insurance but wrong to claim this great prize could be had, in effect, for nothing.”

Second, and perhaps most significantly, “Albeit in a worthy cause, Obama has broken faith with American voters. He promised post-partisan leadership . . . Then, on this epic issue, he allied himself with – in fact, subordinated himself to – liberal Democrats in Congress.”

Vowing to avoid all the missteps of Hillarycare, Obamacare began by following in its footsteps and writing legislation in a partisan vacuum. This not only produced an initial version of healthcare reform that looked like a liberal candy store, it provided Republicans with a credible excuse to oppose bills at every turn.

Although stunned and abased by healthcare reform’s passage in the House last Sunday, Republicans continue a subdued but persistent jubilation. They have lost the battle by the narrowest margin, they insist, only to have conclusively won the war. The new law is so toxically unpopular with the American people as to ensure a slaughter for Congressional Democrats in 2010 and doom President Obama to one term.

They may be right about this. Democrats, flush with victory, are kidding themselves if they think Americans will have forgotten all about their suspicions and concerns over healthcare reform by November. Republicans will keep the issue alive, first in a Senate battle over reconciliation and then in the courts. Red and purple State Attorney Generals have already filed suit, claiming the bill’s mandates are Unconstitutional.

However, Republicans could suffer their own backlash, particularly if they continue doing the very thing that prevented them from burying this bill last fall – their tendency to hyperbolize and demonize.

Infuriating although their rhetoric may have been, there is no question that Republican objections to the Democratic bills produced more politically palatable healthcare reform legislation. It never could have passed either the House or Senate for Obama to sign into law without this GOP “assistance.”

Conservatives were spot on in their push to contain deficits. They argued plausibly that Democrats were underestimating costs and overestimating savings. They validly pointed out the bill was so large and complex that nobody fully understood everything it contained, including the legislators voting for it.

Yet they were not content to let the bills sink on their own faults. Instead, they began jacking up and greasing slippery slopes with fervor. From rationed care, to death panels for the elderly, to government clinics providing torrents of free abortions, their wild and erratic claims were often sufficiently loud to dominate debate for periods but ultimately disproved by facts. Such tactics too often left them, rather than Democrats, appearing the Party guiltiest of exaggerated claims, the Party most unaware of what the bills really contained.

Given Democratic leaders intent on shutting them out, Republicans faced a choice. They could attempt to regain Congressional seats in 2010 by offering reasonable/superior healthcare alternatives or using Party talking points, rumors, and bombast to stoke the fears of an already nervous public. They chose the former and failed. While a victory on healthcare may earn the Democrats little to nothing for the midterm elections, their defeat has cost Republicans more than they may realize or care to admit.

“Someone at Harvard or in San Francisco might think that but not the rest of the country,” sniffed Senator Lamar Alexander, Republican of Tennessee.

How about a “someone” such as former G.W. Bush speechwriter and fellow at the conservative American Enterprise Institute, David Frum?

“We followed the most radical voices in the Party and the movement and they led us to abject and irreversible defeat. Conservative talkers on FOX and talk radio whipped the Republican voting base into such a frenzy that deal-making was rendered impossible,” Frum wrote in his blog. “What’s more important – to win extra seats or to shape the most important piece of social legislation since the 1960s? It was a go-for-all-the-marbles approach. Unless they produced an absolute failure for Obama, there wasn’t going to be any political benefit.”

“When our core group discovers that [healthcare reform] is not as catastrophic as advertised, they are going to be less energized than they are right now,” Frum added.

Also potentially discouraging for Republicans, Stanley Greenberg reports a recent Democracy Corps poll finds the GOP losing ground with all-important Independents over their scorched earth policy of resistance. Favorability ratings for Republican members of Congress by Independents dropped eleven points last month to just forty-two percent. Likewise, preference for Republicans on a generic Congressional ballot dropped twelve points.

Finally, a USA Today/Gallup poll, conducted on Monday, asked, whether the healthcare bill passed the day before by Congress was a good thing or a bad thing overall. Respondents expressing an opinion called it a good thing by forty-nine percent to forty percent.

Most polls showed the Democratic bills as unpopular by ten to fifteen percent margins. This is a significant deficit but it is also a long way from being “wildly unpopular” or “universally detested.”

Democrats had the Congressional majority on this subject from the start. The fact it took a last minute set of procedural and legislative maneuvers to pass healthcare reform is a blot on their decision-making and execution. However, Republicans gained and held public opinion for much of this debate. Their decisions and execution are also tainted.

Instead of attempting to lead by demonstrating what is best about conservatism, they opted instead to appeal to what is worse in people facing change in uncertain times. In spite of this, they helped make healthcare reform stronger than it might have been otherwise. They could continue to do even more going forward by sincerely engaging in bipartisan debate as well as pointing out when Democrats fail to do so.

Republican leaders hoped they were leading a march of large, diverse, grass roots political discontent with liberalism. Sometimes this was the case but all too often they have been leading the march of a mob whose members look surprisingly alike and yet whose only real unifying spirit is their distrust of all institutions. Unless it can produce something more than dissent this year, the Republican Party may find out in November that it is just as much one of the distrusted institutions as its Democratic counterpart.

Thursday, March 18, 2010

Because They Are Hard

The Furor It Will Cause Is Perhaps the Best, Albeit Unpleasant, Reason to Pass Healthcare Reform Now

The odds are still against Democrats managing to get a healthcare reform bill passed and on President Obama’s desk for signature. However, two developments this week have helped its dubious chances and provided proponents with some much needed momentum.

With absolutely no Republican support a given, House Speaker Pelosi must count on recalcitrant Democrats to give her the two hundred and sixteen votes she needs. The troublemakers fall into two categories.

The first are liberals who voted for the House bill back in December but threaten to vote against endorsing the Senate version, citing the lack of a public option and other aspects to which they object as taking the teeth out of real reform. Efforts to convert them got a boost when Representative Dennis Kucinich of Ohio, one of the most left-leaning members of the Democratic Party, announced his intentions on Wednesday to support the bill.

As recently as Sunday, Kucinich was a firm “no.” Writing in the Cleveland Plain-Dealer, he characterized the President’s plan as “a step in the wrong direction,” arguing that “as it currently stands, [the plan] leaves patients financially vulnerable to insurance companies.”

Repeated personal lobbying by Obama convinced Kucinich to change his mind. “I know I have to make a decision – not on the bill as I would like to see it but as it is,” he reluctantly conceded, while expressing hope it represented movement “in the direction of comprehensive reform.”

The second category of Democratic lawmakers targeted by Pelosi is conservative “Blue Dogs.” Many of them voted against the House bill in December, citing budgetary concerns. Others, led by Representative Bart Stupak of Michigan, claim the Senate version will allow federally funded abortions. While not as well known as Kucinich, Representative Dale Kildee, also of Michigan, may prove a trendsetter for conservatives by announcing his support for the bill.

Kildee released a statement Wednesday that he concluded the Senate bill provided sufficient restrictions. “Voting for this bill in no way diminishes my pro-life voting record or undermines my beliefs,” he declared.

Added to this was support by sixty leaders of U.S. Catholic religious orders, representing sixty thousand nuns. Breaking from the U.S. Conference of Catholic Bishops, the nuns proclaimed the Senate bill “will uphold longstanding conscience protections and it will make historic new investments . . . in support of pregnant women. This is the real pro-life stance and we as Catholics are all for it.”

Amid the general tumult, Fred Barnes, editor of the Weekly Standard and a commentator on FOX News, has penned a piece for the Wall Street Journal today arguing against passing the bill. Barnes is clearly opposed to the legislation, maintaining supporters “low-ball its cost and exaggerate the means for paying for it.”

However, the crux of his argument is that rather than settling all the controversy, passage of the bill “would perpetuate [healthcare reform] as the dominant issue for decades to come, reshape politics, create an annual funding crisis in Congress, and generate a spate of angry lawsuits.” Barnes laments the resulting furor will “preoccupy the President, Congress, and millions of average Americans for the foreseeable future – and then some.”

Barnes makes a valid point. At a time when the economy and job creation continue screaming for attention, healthcare reform has dominated Washington’s attention for the past fifteen months in downright obsessive fashion. Nor do I doubt that all of the predictions Barnes makes will become reality should healthcare reform pass.

Rather than resting on their laurels, liberal Democrats will only attempt to expand reform, with a public option their most likely first objective. Republicans, rather than licking their wounds, will continue to do everything in their power to resist, delay, and water down the bill’s mandates. When the day inevitably comes when the GOP regains control of Congress and/or the White House – be that in 2010, 2012, or sometime beyond – they will immediately begin work to try repealing everything the Democrats have passed.

Red states and possibly some purple ones as well can be counted upon to trot out the tired but populist mantra of States Rights in order to insist the federal government cannot force universal healthcare upon them. Lawsuits will proliferate, with the question ultimately going to the Supreme Court. Healthcare reform will be challenged as Unconstitutional, based both on its content – with which I doubt the Justices will agree – and the manner in which it was made into law – where I suspect opponents will find more sympathy among the Justices.

Funding for the legislation, whether its scope is expanded or shriveled, will be a bloodbath. Whether the CBO is accurate that the Senate bill is a deficit reducer or critics are correct that increased access will lead to increased use and higher overall costs, the fact remains that current lawmakers were unquestionably craven in leaving the hardest decisions regarding paying for reform to future lawmakers.

I do not buy conservative charges that President Obama and Democratic leaders seek to usurp the Constitution and impose a socialist state, so I will also reject liberal charges that Republican opposition is based solely on the desire to hand Obama a political defeat which will improve their election chances this November. Instead, I think both sides on the reform debate love this country and want to see better and cheaper healthcare for all Americans. It is clear, however, they have diametrically opposing ideas on the best ways to achieve this goal.

Healthcare reform is an incredibly partisan issue but the divide is much deeper and more complex than merely political affiliation. The real split is over whether it is more expensive to pass reform than do nothing or the other way around.

In spite of all this, in fact precisely because of it, I disagree with Barnes and see continued preoccupation with healthcare reform as the best possible reason to pass the current Senate bill now. The argument he advances – that the fallout will be too great as well as ill timed – is pragmatic on its face but cowardly at its heart. Universal healthcare is a moral and a financial question but concerns over the latter have been used by acolytes of the status quo to resist progress on the former since the New Deal.

I do not know if the defeat of this bill will scare off lawmakers from meaningful reform for another fifteen years, as some have direly predicted. However, I strongly feel that leaving the thirty million Americans this bill would cover uninsured must not continue even another year. I have come to believe that no serious, bipartisan discussion about funding mandated universal healthcare can occur until that mandate has become fact. This is the path, with all its accompanying upheaval, toward which the Democratic bill pushes us, perhaps at times against our will.

As former President Kennedy once observed, society, through the agency of government, takes on large-scale visionary projects like healthcare reform “not because they are easy but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win.”

Another reason cited by Kucinich for changing his vote was that all Democrats need “to be very careful that the potential of Obama's Presidency not be destroyed by this debate.”

Unfortunately, it is probably too late to avoid such damage. Even if he somehow manages to convince Congress to pass the bill, healthcare reform will earn Obama eternal enmity from some voters in exchange for every voter for whom it earns praise. There is no question that Obama seriously misread the public’s desire for universal healthcare coverage following his election. Yet his continued support of the measure is a reminder that true leadership is often not measured by sustained political popularity.

Again, to paraphrase Kennedy, “It is for these reasons that I regard the decision last year to shift our efforts in [healthcare reform] from low to high gear as among the most important decisions that will be made during [Obama’s] incumbency in the Office of the Presidency.

Friday, March 12, 2010

The Enemy of My Ally

And What to Do When My Ally Is Its Own Worst Enemy?

“The enemy of my enemy is my friend,” or so runs an old Arab proverb. The United States has followed this philosophy in our Middle East foreign policy more than once and usually to our eventual chagrin.

We once allied ourselves, at least informally, with Osama Bin Laden and Afghan militants when their war of resistance was draining the Soviet Union of money, arms, and soldiers’ lives near the end of the Cold War. Likewise, Saddam Hussein seemed a darn good ally when he went to war with Iran in the wake of that nation taking hostage some of our citizens.

Another more pragmatic dictum holds that the enemy of my ally is my enemy too. This was the basis for drawing the United States into two World Wars during the Twentieth Century, fortunately on the right and winning sides each time. It continues to be practiced by us without much concern.

It is certainly the basis of our long standing and strongly held alliance with Israel. The U.S. has attempted to negotiate peace between Israel and the Palestinians as an impartial broker and joined the plethora of other countries calling for an independent Palestinian homeland. In spite of this, we acknowledge a friendship with Israel that we do not share with the Palestinian Authority, the representative of Palestinians within the West Bank. We have actual enmity with Hamas, which represents Palestinians within the Gaza Strip.

What is the basis for our stout support of Israel? It rests on the fact that Israel is a democracy, a nuclear power, and unafraid to use force to defend itself. Conventional wisdom also says that Israel is friendly toward and supportive of the United States.

Vice-President Joe Biden might have some stinging counterarguments to make on this last point.

Badly in need of a foreign policy accomplishment, the Obama Administration’s Middle East envoy, George Mitchell, announced Monday that Israel and the Palestinians had both agreed to begin indirect, American-brokered talks. The U.S. had pushed the Arab League to push the Palestinian Authority to the table. Vice-President Biden immediately jetted to Israel to promote negotiations.

Upon landing, Biden spoke of U.S./Israeli relations in the most glowing terms. The relationship between the two allies, Biden told reporters, has always been a “centerpiece of American policy. Progress occurs in the Middle East when everyone knows there is simply no space between the United States and Israel. The United States will always stand with those who take risks for peace. [Israel is] prepared to do that.”

On the very same day, the Israeli Interior Ministry, run by Shas, an ultra-Orthodox nationalist Party, took a not-so-peaceful risk by announcing plans to build sixteen hundred new homes in the east Jerusalem neighborhood of Ramat Shlomo, increasing its Jewish population by more than half.

Israeli Prime Minister Benjamin Netanyahu agreed to a ten month freeze for new housing construction within the West Bank back in November. However, east Jerusalem was considered off the table. Moreover, Israeli officials insisted the project had been approved before the moratorium went into effect.

U.S. officials understood and even tacitly agreed to the exemption for Jerusalem. However, the announcement coming with Biden in country was considered a major embarrassment for America. It certainly made all the difference in Biden’s language.

“The substance and timing of the announcement, particularly with the launching of proximity talks, is precisely the kind of step that undermines the trust we need right now,” he told reporters tersely that evening. “We must build an atmosphere to support negotiations, not complicate them.”

The strong link between the U.S. and Israel were gone in Biden’s remarks the next day at Tel Aviv University. Instead, the “United States pledges to play an active as well as a sustainable role in these talks,” Biden promised. He stressed the Palestinians deserved an independent state that is “viable and contiguous.”

Netanyahu insisted he was “blindsided” by the announcement, a contention that only made him appear incompetent as opposed to indifferent. Despite the awkwardness, the U.S. and Israel remained committed to going forward with talks. The Palestinian Authority and the rest of the Arab World expressed grave doubts.

Yet another old Arab proverb says, “A fool may be known by six things – anger without cause, speech without profit, change without progress, inquiry without object, putting trust in a stranger, and mistaking foes for friends.” It seems unsurprising that the Palestinians hesitate to trust the U.S. or recognize us as friends, given our seemingly unconditional support for Israel.

As for Israel, what makes us so committed to friendship with them? Many note Israel’s strategic importance in the oil rich Middle East, pointing out they are the only country in the region friendly to us, with Arab/Islamic nations full of violent anti-American sentiments. Yet this ignores that a chief complaint of these Arab/Islamic critics is our unwarranted (at least in their minds) support of Israel.

What is worse, despite undeniable Arab hostility toward it, there is a growing realization that Israel’s worst enemy may actually be itself.

The National, an English language newspaper published in the United Arab Emirates, recently condemned Israel in an editorial for “getting closer by the day to pariah status, not because of some international conspiracy or thoughtless anti-Semitic passions but because of its own actions. Its intransigence on settlements and peace with the Palestinians is met with increasing frustration and disbelief abroad. Even in the U.S., the voices urging Israel to wake up and smell the coffee are no longer on the margins.”

Granted, an Arab newspaper may be questioned for impartiality but they are far from alone.

Alan Hart, author and a correspondent for ITN and the BBC, writes, “It has long been my view that Israel is its own worst enemy . . . it’s obvious that more and more so-called ordinary people of the world are becoming outraged by the Zionist state’s arrogance of power, its contempt for international law and, most of all, its brutal repression of the Palestinians.”

Haroon Siddiqui notes in the Toronto Star, “Israel has ended up with the exact opposite of what it wanted . . . Israel either does not want peace, as its critics claim, or it does but by dictating terms to a pliant partner.”

Even Avrum Rosenseweig of Haaretz laments, “We were not a violent people. We never danced and sang while our foes suffered. When did we become our [own worst] enemy?”

If the U.S. practices the policy that the enemy of our ally is our enemy and Israel really is its own worst enemy, then does that make Israel our ally or our enemy? Yes, it is silly semantics but the question may be worth more serious consideration.

Netanyahu and the conservatives would like nothing better than to deflect U.S. attention away from the Palestinian issue and re-focus it on Iran. Israel has been pushing for stricter international sanctions targeting Iran’s nuclear program and has refused to rule out a military strike if sanctions fail. When Biden talks about “no space between the United States and Israel,” many see that as code to mean the U.S. would not allow the Arab/Muslim World to retaliate against Israel for such a strike.

Maybe that is not such a good idea. Maybe the U.S. would do better to simply sit back and let Israel reap the full outcomes of its actions if it insists on dictating direction. Conventional wisdom would regard such an outcome as a tragedy. Maybe we ought to regard it instead as a win-win. Maybe there are cases when the enemy of my ally can be my friend and my enemy as well. Now there is a novel approach to dealing with the Middle East. It all depends on the ally, I guess.

Wednesday, March 10, 2010

Massa’s in de Cold, Cold Ground

And the New York Representative Put Himself There
All by Himself

Round de media be a ringin’
One Democrat’s mournful song,
While de majority be a singin’,
Happy as de day is long.
Where de groping charges be a creepin’
Ova de healthcare mound,
Dear ol’ Massa lay a sleepin’,
Sleepin’ in de cold, cold ground.
– with profound apologies to Stephen Foster

Who says that folksy radio host and newspaper columnist Garrison Keillor is the last of the great American storytellers? Democratic Representative Eric Massa of New York, who resigned his seat this week amidst controversy, can spin a yarn like nobody’s business. Ask him why he isn’t in Congress anymore and then sit back and listen to his answer. In fact, listen even if you already asked him because I guarantee the answer he gives today won’t be the one he gave yesterday.

It started last Wednesday when Massa, a first-term Representative, announced he would not be running again due to health reasons. Originally stricken with non-Hodgkin’s lymphoma in 1996, Massa said his cancer had returned in December. During the press conference, he rebuffed a reporter’s inquiry into rumors that he had been accused of sexually harassing a staffer. He admitted, however, to using “salty language” around his staff.

“There is no doubt in my mind that I did in fact, use language in the privacy of my own home and in my inner office that, after twenty-four years in the Navy, might make a Chief Petty Officer feel uncomfortable,” Massa acknowledged.

On Thursday, the House Ethics Committee released a brief statement confirming that it was investigating allegations against Massa. The complaint came from a male staffer who felt uncomfortable during an exchange with Massa that reportedly had sexual overtones.

On Friday, Massa held another press conference, this time to tearfully announce he was resigning immediately. He cited the pending ethics probe as the reason for his decision, saying it “would tear my family and my staff apart.” He also explained the circumstances behind the charges against him, which were more specific than generally salty language.

Massa said he was attending a New Year’s Eve wedding reception for a member of his staff. After Massa danced with a bridesmaid, the lawmaker said another staff member sitting next to him suggested Massa should be “chasing after” the woman. Massa said the staff member’s language was actually “more colorful.”

Massa reported he then grabbed the staffer who made the comment and told him, “Well, what I really ought to be doing is fracking you.” Presumably, Massa’s own language was also more colorful than “fracking.” He then “tousled the guy’s hair and left . . . because I knew the party was getting to a point where it wasn’t right for me to be there.”

Over the weekend, Massa suddenly seemed to find conspiracies everywhere behind his resignation. Massa was one of thirty-nine Democrats who voted against the healthcare reform bill passed by the House last November. His departure reduces the majority House Speaker Pelosi needs for passage of the Senate version of the bill to 216 votes.

“Mine is now the deciding vote on the healthcare bill,” Massa said during his weekly radio address on Sunday. And this Administration and this House leadership have said, quote – they will stop at nothing to pass this healthcare bill – unquote. Now they've gotten rid of me and it will pass. You connect the dots.”

White House spokesperson Robert Gibbs initially characterized Massa’s accusations as “silly” and later upgraded them to “crazy.”

Massa also claimed that White House Chief of Staff Rahm Emanuel had always hated him and was out to get him. He detailed a bizarre encounter between them in the showers of the House gym.

“I’m sitting there showering, naked as a jaybird, and here comes Rahm Emanuel, not even a towel wrapped around his tush, poking his finger in my chest, yelling at me because I wasn't going to vote for the President’s budget,” Massa dished. “Do you know how awkward it is to have a political argument with a naked man?” he added.

Massa went on to portray Emanuel as a ruthless, evil person who would “tie his own children to railroad tracks” to get what he wanted. However, Massa subsequently backed off that statement, admitting it was “over the top.” White House officials flatly denied the shower incident ever happened.

Then, on Tuesday of this week, the story took a new twist when the Washington Post reported that rather than a single allegation, Massa was being investigated “for allegations that he groped multiple male staffers working in his office,” dating back at least a year and involving “a pattern of behavior and physical harassment.”

Massa promptly hit the talk show circuit, appearing on programs hosted by Glenn Beck and Larry King on Tuesday evening. He acknowledged groping one male staffer to Beck but denied it was sexual in nature, describing it instead as a “tickle fight” in which he tickled the man in question “until he couldn't breathe.” Later, he told King that he had never groped anyone, calling the allegation “not true.”

There is something in the nature of a sad clown regarding Massa’s responses to the accusations against him. The man cannot stop owning up to his actions fast enough once caught.

As regards the use of salty language, “there is no doubt that this ethics issue is my fault and mine alone.” In the case of innuendo at a wedding, “Now was that inappropriate of me? Absolutely.” Concerning groping/tickling, “It doesn't make any difference what my intentions were, it's how it's perceived . . . My behavior was wrong.” Even wild conspiratorial charges, “I wasn't forced out; I forced myself out.”

Yet he makes these concessions not to accept responsibility but rather to demonstrate some sort of faux nobility that, in his mind, absolves him of any real ethical or criminal wrongdoing. This was epitomized during his appearance with Glenn Beck, when Massa insisted he was personally powerless to change the system in Washington or anything else. This earned him a derisive “Bull crap! Bull crap, sir!” from the pugnacious host.

In just one week, Massa has offered, by my count, no less than five different explanations as to why he is no longer in Congress. Perhaps the truest and most self-reflective comment from him during this short but lurid saga came during his resignation speech, when he called himself “a deeply flawed and imperfect person.”

Some are already labeling Massa the Democratic equivalent of Mark Foley, the former GOP Representative from Florida who was also driven from Congress over ethics allegations with overtones of homosexual behavior. Like Massa, Foley offered a series of implausible denials, explanations, and excuses before finally owning up to the truth. Whether Massa’s personal transgressions will come to tar his Party in the way Foley’s did the GOP remains to be seen, although New York has proven to be an embarrassment of riches for Republicans this month, first with former House Ways and Means Chairman Charlie Rangel and now Massa.

However, there is no question that Massa’s attempts to quietly slink away have backfired on him in spectacular fashion. As is the case in so many similar scandals, it is not the initial offense(s) that have damned him so much as the subsequent denials and cover-up.

After talking with Massa for an hour, Beck ended his program by apologizing to his audience. “America, I think I've wasted your time.” This is more or less what Massa has been doing to his family, colleagues, constituents, and the country as a whole for about a week. Unfortunately, he shows no signs of giving up until he finishes stretching his fifteen minutes of fame into infamy.

Despite attempts by Massa to equivocate and pass the buck, it is not salty language, an out-of-control wedding reception, healthcare reform, or Rahm Emanuel’s prison shower tactics that ultimately buried him. For that, he need look no further than his own behavior and his lack of integrity in owning up to it. Character matters.

Friday, March 5, 2010

Acquiescence to Due Process

Justice Scalia Struggles to Love a Flexible Constitution as much as He Loves Guns

If you listen to pro-gun activists, the case of McDonald v. Chicago, argued before the U.S. Supreme Court this Tuesday, is the most important thing to come before the nine Justices since District of Columbia v. Heller and just as groundbreaking Constitutionally. From my perspective, the case is more an addendum to Heller than its peer.

In Heller, the Court’s conservatives, by a five-to-four vote, shot down a Washington D.C. ban on handguns. In doing so, the Justices finally took a stand on the Second Amendment that the Court had been conspicuously ignoring for the past two centuries of American democracy. To wit, Heller’s majority decision said the Second Amendment was more than just about militias and implied an individual right to bear arms. Specifically, it allowed D.C. residents to keep handguns in their homes for personal protection.

The Court hedged its bet by stating that although outright bans were Unconstitutional, other types of “reasonable regulations” were probably okay. The Court’s silence on the rights of state and local governments to impose restrictions was particularly deafening, noting these were very different animals than a federal district, with historically far greater control over their jurisdictions.

However, the ink was not yet dry on the Heller decision before hundreds of lawsuits were filed against state and local gun bans as well as restrictions on bearing firearms outside the home. McDonald is the case the Justices agreed to look at next. Although anything is possible, the deck seems stacked that the Court will extend the same gun ownership rights and protections to U.S. citizens living outside the Beltway that it previously extended to those dwelling within its boundaries.

For starters, gun rights activists have gotten a lot smarter about public relations. Although the National Rifle Association – a group anti-gun activists love to demonize – is a major impetus behind this case, the actual face of McDonald is Otis McDonald, a spunky seventy-six year old grandfather living in a bad Chicago neighborhood who wants to keep a handgun in his home to protect himself from gangs. He presents a far more sympathetic defendant to the Justices, whose conservative clique is unlikely to suggest he follow President Obama’s lead regarding the power of community organizers.

As expected, the conservative Wall Street Journal editorial board is all for extending the end of outright gun bans to the states. “If the First Amendment's right to free speech applies to the states, then so does the Second Amendment,” they write.

At the far more liberal New York Times editorial board, the feeling is very . . . much the same, actually. While noting they strongly disagreed with the outcome in Heller, the Times editors feel the Court “should make clear that all of the protections of the Bill of Rights apply everywhere.” The Washington Post, while also at odds with Heller’s majority decision, avows, “It would seem incongruous at best and legally indefensible at worst to deny to those beyond the nation's capital a right that the Justices have ruled is embedded in the federal Constitution.”

The bad news for pro-gun activists is that McDonald really is not breaking any real new ground regarding gun rights beyond extending the territory for Heller. Nonetheless, it seems a logical and straightforward next step.

The principle argument for doing so, as set forth by Alan Gura, the lawyer who represents McDonald and the other Chicago challengers, is the Due Process clause of the Fourteenth Amendment, which states, “no state shall deprive any person of life, liberty or property without due process of law.” The Court has relied upon it in the past to establish a woman’s right to an abortion as well as prohibiting state laws against interracial marriage and gay sex. It is the logic officially favored by the NRA.

Gura also mentioned another aspect of the Fourteenth Amendment – the Immunities clause, which forbids states to make or enforce any law “which shall abridge the privileges or immunities of citizens of the United States.” Some legal scholars believe the Court would do well to embrace it as a means to shore up property rights, among other reasons.

However, it drew a cool reaction from the Court, even among the conservative Justices. The scuttlebutt is that conservatives fear progressives would use such a precedent to find other rights in the Constitution, such as a right to . . . oh, say . . . health insurance. Under prickly questioning from Justice Scalia, Gura ultimately conceded he would still be “extremely happy” if the Court settled upon the traditional Due Process clause.

Voting against McDonald on this basis would prove a tough challenge for the liberal Justices who opposed Heller, because they have repeatedly favored this logic in the past. The catch actually lies with conservative Justices, such as Scalia, who have argued vehemently many times against a legal doctrine they call “substantive due process,” claiming it is also a potentially dangerous vehicle for judicial activism and inventing non-existent Constitutional rights.

However, Scalia admitted he has reconciled himself to Due Process as a means of incorporating Constitutional rights to states, telling Gura at one point, “As much as I think it's wrong, even I have acquiesced in it.” The translation here, I think, is that Justice Scalia has discovered judicial activism can be fun when it helps bring about conservative aspirations, an observation I have pointed out previously.

James Feldman, the lawyer representing the city of Chicago, got absolutely nowhere with the Justices by insisting gun rights were not an essential attribute of “ordered liberty.” If this were true, it would mean that Heller was wrongly decided, Justice Kennedy explained to him with icy politeness.

Feldman did slightly better with the argument that, unlike other Constitutional rights, the right to bear arms pits the threat guns pose to human lives against the right to carry them, requiring a balance to be struck. Chief Justice Roberts replied he saw no way to read the Heller opinion to make the Second Amendment a less important right than any other but Justice Breyer, in particular, seemed sympathetic. Breyer and Scalia later engaged in a long debate on the matter while the lawyers stood silent.

So McDonald will almost surely be decided in favor of gun rights but it will probably take many future case-by-case challenges for the Supreme Court to define what represent reasonable restrictions. Chief Justice Roberts admitted as much. “We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”

It is impossible to guess where this Court may draw lines but I suspect and certainly hope they will be more congenial to limitations than most ardent pro-gun activists desire. Civil liberties tend to be as close to absolute as possible, such as in the case of free speech, but there is a big difference between shooting off one’s mouth and shooting off one’s firearm – the relative hurting power of sticks and stones on bones versus names and all that.

It is pretty clear that virtually all of the Justices, much like Scalia, have acquiesced to the inevitability of an individual right to bear arms. It is interesting, however. Scalia undoubtedly defines his acquiescence in the sense of tacit consent without objection. Yet “acquiescence” also carries a specific legal definition, meaning “neglect to take legal proceedings for such a long time such as to imply the abandonment of a right.”

In this sense, one might almost conclude that by remaining silent on the exact meaning of the Second Amendment for so long, and continuing to flesh it out with maddening slowness in McDonald, it almost seems like the Supreme Court abandoned gun rights or at least its right to speak on the matter. But then I remember this is an activist Court for an active moment in U.S. history.

Wednesday, March 3, 2010


Senate Republicans are Fit to be Tied over Threatened Use of a Knotty Procedure They Perfected

Republican Senator Orrin Hatch of Utah authored an op/ed piece that appears in Tuesday’s Washington Post. In it, Hatch concedes that the Senate is a slow-moving, deliberative body, whose many rules and procedures are designed to give the minority every chance to dissent against the majority’s rasher moves. “Both Parties do it when in the minority and both find it frustrating when they are in the majority,” he chuckles.

However, he is not chuckling over one particular Senate procedure, known as “reconciliation.” Although they have been loath turning to it up to this point, Democratic legislators may now well heed President Obama’s call to use reconciliation to pass his latest proposed version of healthcare reform. Under this plan, the House would adopt the bill passed by the Senate on Christmas Eve “as is” and then utilize reconciliation to enact compromises Obama and Congressional Democrats worked out in January.

First adopted by the Senate back in 1974, reconciliation is a parliamentary procedure that limits debate on a particular bill to twenty hours maximum, followed by a vote in which only a simple majority is required for passage, thereby evading the sixty vote “supermajority” typically needed to end debate. It was revised in 1980 to apply strictly to budgetary matters. The idea behind reconciliation was to make politically tough budgetary choices, such as raising taxes or cutting spending in order to reduce the deficit.

Hatch and other Republicans say reconciliation is a bad process that “threatens our system of checks and balances, corrodes the legislative process, degrades our system of government and damages the prospects of bipartisanship.” What is more, even though reconciliation was created especially for tough budgetary choices, Republicans insist it was never intended for “a bill that would affect one-sixth of the American economy.” Senate Minority Leader Mitch McConnell of Kentucky characterizes reconciliation as “little used.” Hatch goes farther, calling the procedure “arcane”.

The GOP insists that if Democrats use reconciliation to pass healthcare reform “against the will of the American people,” they will be committing political suicide. This may well turn out to be true. However, any Republicans trying to figure out what may have inspired Democrats to tie normal Senate protocols in knots using reconciliation need look no further than the tips of their own fingers.

While Democratic healthcare reform would probably end up the largest expenditure ever to use reconciliation, the fact is that of the twenty-two bills employing this procedure since 1980, sixteen have come out of Republican-controlled Senates seeking to bypass minority opposition. What is more, many of those bills involved large monetary figures and/or dealt with high visibility/controversial issues.

Hatch paints a very different picture in his editorial. Republicans, he insists, only used reconciliation for “substantive legislation” when the legislation also enjoyed significant bipartisan support, such as the State Children's Health Insurance Program (SCHIP).

In truth, Republicans also used the procedure to pass a variety of cuts to welfare and food stamps in both the 1980s and 1990s. They used it to pass the Bush tax cuts. They tried using it, albeit unsuccessfully, to open the Arctic National Wildlife Refuge to oil drilling.

This history makes Hatch’s sudden fondness for deliberations and protection of the minority dubious at best. As an editorial in last week Washington Post proclaimed, “This is hard to take from a crowd that just a few years back was moaning about the preeminent importance of the up-or-down vote.” The same editorial also notes, “In fact, reconciliation is no more a tricky parliamentary maneuver than the filibuster.”

Republicans beat Democrats at this tactic as well. The 110th Congress of 2007-2008 had a record-setting one hundred and twelve filibusters. The current 111th Congress is on track for about seventy-five filibusters, a combined total that Jim Riddlesperger, a Political Science Professor at Texas Christian University proclaims “astonishing.” In comparison, the most Democratic filibusters were fifty-eight by the 106th Congress of 1999-2000.

Republicans are not without recourse. Reconciliation allows Alan Frumin, the Senate Parliamentarian, to recommend trimming any portion of the healthcare reform bill he considers unrelated to the budget – including barring insurers from denying coverage, creating a government-run insurance program, encouraging preventive medicine, and covering abortions. Although Vice-President Biden, as President of the Senate, has the final say, precedent favors him leaving the Parliamentarian’s recommendations in place to avoid future reprisals.

In his op/ed piece, Hatch reveals that Republicans considered using reconciliation to pass former President Bush’s prescription drug benefit program but decided against it in favor of bipartisan consensus. “That precedent should carry the day here,” he admonishes.

Yet as the Washington Post editorial board points out, reconciliation has been the precedent for passing healthcare legislation in recent years. Besides the aforementioned SCHIP program, it was also used to provide the ability to buy into employer-sponsored health insurance after leaving a job (i.e. COBRA), federal standards for nursing home care, changes to Medicare payment policies for hospitals, and expansion of Medicaid eligibility.

If Senator Hatch wants to admit Republicans have used reconciliation in the past with shameful grins to “jam through” partisan legislation and Democrats ought to do the same if they choose to exploit it now, I will agree with him. Democrats who once waxed poetic over the importance of debate and dissent when Republicans threatened use of the “nuclear option” to force confirmation votes on conservative federal judicial candidates are being plenty hypocritical now using reconciliation as a last-ditch means to pass healthcare reform.

However, Hatch’s contention that reconciliation is an almost unknown procedure within the Senate Chamber and never used for important legislation is simply an outright lie. Former Senate Parliamentarian Robert Dove told NBC News on Monday morning, “Reconciliation has been used a lot, and I would never use the term illegitimate with regard to reconciliation.”

As a certain sage from Utah once observed, “Both Parties do it when in the majority and both find it frustrating when they are in the minority” . . . or something like that.