i am more exhausted, stressed out, and drained than i can possibly convey, and for some reason this picture made me happy(er):
angst
I’m taking a break from politics…my angst is at an all-time high. I feel like there is no room for reasonable discussion, and even when I try to hear the other side, all I get is a lot of hate. I’m hugely uninterested in hate—especially since both sides have an over-abundance of that commodity at present. Knowing me, this break won’t last long…but anyway, for now, it’s on.
a labyrinthine, billowing wreath
I’ve never met Philip Roth, but you wouldn’t know it from this quote; I’m sure he is talking about me. I’ve always felt that curls were some sort of metaphoric, cosmic joke—a physical manifestation of the inner tumult progressing beneath them.
“Her head of hair was something, a labyrinthine, billowing wreath of spirals and ringlets, fuzzy as twine and large enough for use as Christmas ornamentation. All the disquiet of her childhood seemed to have passed into the convolutions of her sinuous thicket of hair. Her irreversible hair. You could polish pots with it and no more alter its construction than if it were harvested from the inky depths of the sea, some kind of wiry reef-building organism, a dense living onyx hybrid of coral and shrub, perhaps possessing medicinal properties. For three hours she held Coleman entranced by her comedy, her outrage, her hair, and by her flair for manufacturing excitement, by a frenzied, untrained adolescent intellect and an actressy ability to enkindle herself and believe her every exaggeration… But when he got her back to Sullivan Street that evening, everything changed. It turned out that she had no idea in the world who she was. Once you’d made your way past the hair, all she was was molten.” -Philip Roth
Like this:
Our Conscience v. The Constitution
During this week’s Supreme Court oral arguments about healthcare, Justice Anthony Kennedy made the following statement:
The reason this [law] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticism of that rule, but that’s generally the rule. (Department of Health and Human Services, et al. v. Florida, et al., Supreme Court case No. 11-398, transcript page 31, lines 2-10)
In essence, if you are walking down the street and a car is heading toward a blind man (that you are not related to), you can’t be held legally at fault if you don’t warn him. That seems fair legally…but is it right morally? If any of us were to see a blind man in such a risky situation, I would hope we would stop and warn him—not because the law requires us to do it, but because our conscience would not allow otherwise. Certainly the Constitution doesn’t forbid us from stopping him, from warning him. It only allows that we have no legal obligation toward his protection. What our conscience allows, however, may be a different matter altogether.
The healthcare issue grapples with the same philosophical tension as this example. Does the Constitution require us to provide healthcare to all Americans? No. Not even the Solicitor General made such a case. However, what our collective conscience requires is quite a different thing. For all our current economic woes, we remain one of the wealthiest nations on the earth, and our citizens enjoy a degree of freedom coveted still by many other peoples. We have a society that aims, however unsuccessfully, at giving each person a chance to make of themselves what they will. Surely access to health benefits is critical to that end.
Is the Affordable Care Act (ACA) the solution? Definitely not. Americans are right to be concerned about the safety of their personal liberties under the ACA. But all those who believe in universal healthcare have a right to be concerned as well; their conscience dictates that we care for the citizens among us who remain without health benefits, and we have not, heretofore, done so. On the one hand, we are concerned about the violation of our freedom; on the other hand, we fear the violation of our social conscience. The two concerns are noble, and testify to the sophistication of American life.
The two concerns are not, however, at odds. I fear that somewhere along the way, we were led to believe that the Constitution and our social conscience stood in opposite corners. We were asked to choose sides, and then denigrate those who chose otherwise. Those who cling to the hallowed document are seen as greedy, ignorant, and selfish (at best). Those who claim the moral high ground are seen as destroyers of freedom and challengers of fundamental tenets of American life. I’d like to argue that, in fact, the exact opposite is true.
The Constitution was not intended to stand in conflict with the people’s conscience; rather, it was crafted in such a way as to insure that the people were given the freedom to live to their social conscience, to create a society that matched their social conscience. The five freedoms in the First Amendment alone testify to that. As we consider and debate the healthcare issue, we do not need to choose between our conscience and the Constitution. Rather, we need to find a way that the two can stand hand in hand.
The ACA is not such a “way.” It’s a messy, complicated law that threatens fundamental liberties and will leave our nation fragmented and raw. I sincerely hope that the Supreme Court strikes it down; not because I don’t want universal healthcare, but because I don’t want to our current fragmentation legitimized. We should not enact any law that leads the American people to believe that those of us who desire personal liberty are separate from and at odds with those of us who desire social justice. They are two, equally-necessary sides of one coin: America itself. Congress should begin again, from scratch, and craft a law that allows for the care of all willing Americans without mandating private goods on anyone.* A law that answers the demands of our social conscience within the parameters set by the Constitution. An innovative, progressive law that matches the American spirit both in heart and liberties.
__
* To those that argue that a mandate is the only way: I disagree. A mandate is only essential when you consider insurance as the only option. There are other options utilized by other nations worldwide. (Why would we want to empower insurance companies, anyway, when they just abuse us?)
Like this:
(My) Further Thoughts on Health Care
I have to say, after three days of listening to the Supreme Court arguments, not only am I utterly inspired (again) to apply for law school, but I also feel like I’m old friends with the Justices. And I have to say—Justice Breyer has a very soothing voice.
Still, the various arguments have been good fodder for thought, and the following is a rough bullet list of things that came to mind as I listened to them. Bear in mind that I really do know NOTHING substantial about all this. It’s just opinions.
- Of the 40 million uninsured Americans, how many of those are currently Medicaid-eligible? Because if that number is size-able, mightn’t there be a better way of lowering costs, namely to find out why these people don’t accept Medicaid and answer that first? If we can increase the number of people enrolled in Medicaid—without mandating it—mightn’t that preserve liberty and healthcare both?
- Interestingly enough, it’s not the very poor who are most affected by the current healthcare crisis. There are already provisions for the very poor under Medicare. Rather, it is a class of people called “the working poor”—hard-working Americans with jobs—who are without these benefits.
- One of the Justices made the point that the government passed the law saying ERs had to see everyone; thus, it should be the government’s job (and not a mandate given to private citizens) to fund that. I believe he mentioned the levy of a tax, and frankly, as much as we all don’t want more taxes, I think that’s preferable to the gross infringement on personal liberty that the mandate would be.
- So that got me thinking: if the government is so determined to have healthcare, why doesn’t it make the healthcare fee an actual tax; set things up similarly to public education (cos that’s working so well, I know—but hear me out). The States (NOT the Feds!!!!!!) can charge taxes to subsidize clinics for uninsured parties. The equivalent of public education. You pay taxes for that instead of being compelled to buy health insurance, and you have access to the free clinics as needed. We’ll need to build and staff more clinics, sure, but that could also help in job-creation. It could be the New New Deal. I know that a lot of people would be up in arms over this, but it would at least be constitutional (though not popular; I know).
Total tangent:
This is my favorite exchange in all the proceedings (the 8th Amendment is the one that forbids cruel and unusual punishment):
JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
(Laughter.)
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?
(Laughter.)
JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?
…JUSTICE SOTOMAYOR: …what we have to look at is what Congress said was essential, correct?
MR. KNEEDLER: That is correct…
…JUSTICE KAGAN: I mean, we have never suggested that we’re going to say, look, this legislation was a brokered compromise, and we’re going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference. Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.
(Laughter.)
JUSTICE SCALIA: I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.
(Laughter.)
You might as well know: I plan to use the phrase complex parliamentary shenanigans as often as I can.
The Medicaid Question. Day 3.2 at SCOTUS
I wrote this yesterday, but am only getting around to posting it today.
The second half of today’s proceedings will consider whether the Affordable Care Act’s proposed Medicaid expansion is in violation of the federal-state partnership.
Medicaid, in case you don’t know is one of the world’s largest (if not THE largest) medical care programs. It serves more than 50 million Americans, and the number is steadily rising. It’s the single largest source of federal “grant” money received by states, and the Affordable Care Act will increase the amount by $454 billion this decade. States’ spending is expected to rise $20 billion in that time (some states may even spend twice that amount).
What the States are arguing:
With what they say are already bleak prospects for state budgets, the 26 states are making a simple plea to the Supreme Court: that they are facing financial ruin if they stay in the Medicaid program, and they have no way to back out of it and find their own way to pay for medical services for their neediest citizens. Congress, this time, has clearly gone too far, they argue, in using its powers under the Constitution’s General Welfare Clause (also more popularly known as the Spending Clause, even though the word “spending” is not mentioned specifically).
“A judicially enforceable limit on Congress’s power to use federal tax dollars to coerce states is not just consistent with this Court’s precedent; it is a constitutional necessity,” the states’ lawyers have told the Court. “And if the ACA’s expansion of Medicaid does not surpass that limit, then no Act of Congress ever will.” - Lyle Denniston, “Argument preview: Health care, Part IV”, SCOTUSblog.com, March 23, 2012
What the government has to say about that:
The federal government has answered that “states remain free to opt out of Medicaid if they so choose…The extension of Medicaid eligibility falls well within the bounds of Congress’s power to fix the terms on which it will appropriate federal funds….Congress has broad authority to attach conditions to federal spending in order to further federal policy objectives.” (ibid)
Ramifications of the decision
If the states were to succeed in having the Medicaid expansion struck down, government lawyers have told the Court, it would nullify not only the expansion aimed at protecting an additional 16 million poor Americans, but every other condition the government has imposed for those taking part in Medicaid, and the negative effect would spread to “an unspecified number of other federal spending programs whose terms grant recipients may find coercively generous.”
Variations of the word “coerce” appear in both of those dueling statements. And that is because a coercion theory very likely is the only one that could give the challengers to the new Medicaid provisions a chance at succeeding. It is noteworthy, and this may be to the federal government’s advantage, that the Supreme Court — though it has acknowledged that the theory does exist — has never once used it to strike down a federal spending law. And, further, not one of the federal courts that have ruled on the ACA’s Medicaid expansion has struck it down, with none agreeing that it was vulnerable under the coercion argument. (ibid)
Reflections on the Arguments
One very plausible middle ground outcome would be to say that there are some limits on the federal government’s ability to revoke all Medicaid funds in response to a state’s decision just to refuse the expansion. What those limits are would be left for another case. But I don’t see the Court going further than that. The Chief repeatedly suggested that maybe the states gave up this aspect of the sovereignty by accepting federal funds. The SG closed with an argument that the health care statute as a whole including the mandate was essential to the public receiving the “blessings of liberty” because health care is so important. All the usual caveats apply about how you cant be sure from an argument. – Tom Goldstein, “The Medicaid argument…”, SCOTUSblog.com, March 28, 2012
The audio and transcript are available from SCOTUS.
the horror, the horror
I was going to continue my series of posts on the health care proceedings in the supreme court, but… i went and got my haircut today and it’s terrible and i look wretched and so i cannot possibly focus on anything but my shorn head. shorn hair. i guess i should be grateful my head wasn’t lopped off with all my hairs. the only bright side is—my hair is now so short it would easily fit under a wig.
before you say something like “every single time you get a haircut, you are traumatized” remember that i am traumatized and not feeling kindly towards such unfriendly statements. i have difficult hair as it is. and i cant even begin to describe the horribility that it now is.
i’ll get back to SCOTUS tomorrow. assuming i make it out of bed. assuming i don’t smother under all this melodrama.
