The Supreme Court Guns for Obamacare Again

The Supreme Court’s decision to hear the latest challenge to Obamacare, and in such unseemly haste, is alarming.  The haste is what worries me most, for several reasons. 

Normally, the Supreme Court waits for a circuit split, i.e., for two different circuits to disagree before it takes on a challenge.  This time the claim of a circuit split was extremely dubious.  The Fourth Circuit has ruled in favor of the government.  A three-judge panel of the D.C. Circuit ruled against it, but the decision was on track to be overturned by the D.C. Circuit as a whole.  Instead the Supreme Court jumped in and decided to hear it.  It takes four justices to decide to hear a case.  Clearly the four who lost last time around were stung to the quick and determined to kill Obamacare at the first chance they got.  That they were so quick to jump at the chance strongly suggests they are confident that this time Roberts will rule their way.

Another reason for the haste was articulated by the challengers of the law.  The faster they act, the fewer people will be stripped of their health insurance by an adverse court ruling.  Presumably the Supreme Court wants to strip people of their health insurance as soon as it can so as to limit the number being affected.

But the timing right after an election that was a Republican blowout is most suspicious.  Republicans have always had several goals.  (1) Kill Obamacare.  (2) Make sure Obama gets blamed when millions lose their health insurance.  (3) Make the subject so toxic that Democrats will never touch it again.  (4) Avoid coming under pressure to do something themselves.   This set of priorities rules out an open repeal now that people actually have gotten insurance because openly voting to strip people of their health insurance is a surefire loser.  If Republicans win the triple crown in 2016, they might vote to repeal the individual mandate in hopes of inducing a death spiral.  If the death spiral hits soon enough, they can probably blame Obama for it (just as Obama escaped too much blame for the bad economy in his first term by blaming it on Bush).  But if it takes longer, they will be blamed.  And if the death spiral gets seriously underway while Republicans are in power, they might come under pressure to do something about it. 

Enter the Supreme Court.  If the Supreme Court rules that people cannot receive subsidies if they buy insurance on federal exchanges, it will successfully kill Obamacare in the majority of states that did not set up their own exchanges.  By doing stripping millions of their health insurance during the Obama presidency, the Supreme Court can ensure that Obama and not they are blamed for it.  The whole uproar will probably convince Democrats just how high a priority preventing any expansion in health insurance is to Republicans and prevent them from tackling the issue ever again.  And while Republicans can ride the wave of outrage over so many people losing their health insurance to victory in 2016, they can at least hope that the outrage will have died down enough by the time they come to power, and people will have adjusted well enough to the new situation that they will not come under any pressure to do anything about it, and people will finally accept high rates of uninsured as the will of God and/or the free market.

Why the Republican Blowout?

So, we have had a huge Republican blowout this election, even though the Republican brand is still viewed with suspicion.  Why?  I think we can rule out at least one explanation.  It is not because the Republicans finally got rid of their crazies and ran as a reasonable party.  Quite the contrary, up till now insanity has been a winning formula in the House but has cost the Republicans winnable seats in the Senate and the governorships.  But this time, insanity does not seem to have been a serious barrier to either Senators (Joni Ernst) or governors (Brownback).   Republicans have improved their ground game, and no doubt that has something to do with it.  Democratic turnout was weak, but that is a poor excuse.   It was weak because Democrats lacked enthusiasm, so it is fair to ask why.

I think it safe to say that Democrats’ lack of enthusiasm was part of a general mood of pervasive discontent, and that people voted Republican as a way of expressing that mood.  So why the general mood of pervasive discontent?  The conventional answer is, it's the economy, stupid.  That’s probably a lot of it, but not all.  The economy is certainly lackluster, but hardly disastrous.  It has been a lot worse.   Job growth is decent and unemployment is falling. In fact, for the first time it is genuinely falling in the sense that labor force participation is rising, instead of people simply giving up and leaving the work force.   But it hasn’t fallen enough to raise wages.  Wages remain stagnant and show no promise of picking up any time soon.  That, I think, is the economic answer.  Before, the economy was worse, but people could still hope it was temporary.  Now the economy is so-so and shows no promise of improving any time in the foreseeable future.  This is in some ways worse because there is no hope.

But if it was only the economy, I suspect Republican gains would have been less spectacular.  Obamacare may be a factor.  The rollout was disastrous.  Many existing policies were cancelled, and even though they were replaced, the replacement led to real disruption and anxiety.*  And besides legitimate grievances, many people were eager to blame any other problem on Obamacare as well.  But I doubt that this was a major factor.

I have heard maybe one or two suggestions that it was a backlash against the sudden wave among the courts to compel same sex marriage, but I see nothing to suggest that same sex marriage played any role whatever in the election.

The really decisive factor, I think, is that Scary Things were happening abroad that were easily blamed on Obama’s lack of leadership.  Large numbers of unaccompanied minors started crossing the border.  Russia invaded the Ukraine.  ISIS took over large areas in Syria and Iraq and beheaded journalists.  Several Ebola cases broke out in the US.  Republicans said that if they had been in charge, they would have been tougher and stopped these things from happening.  The claim is not really very credible, but things start looking scary, most people’s natural reaction is to turn to someone strong for protection.

At the same time, I will say that if we had had a sizzling hot economy, most people would probably have shrugged these things off.  A lackluster economy with no prospect for improvement and menacing developments abroad were enough in combination to lead to the Republican blowout.

Is this a harbinger of for 2016?  I would say it is impossible to tell.  That will depend on what happens between now and then.  If the economy picks up enough that wages start rising, if ISIS and Russians in the Ukraine shrink into manageable threats and nothing more disastrous happens, and if Republicans just can’t resist the temptation to act on the crazy, then probably not.  If Republicans act reasonable, if the economy continues to languish, if disasters continue abroad, or if we get into a ground war, then probably so.

Finally, I will drop a few thoughts on what Republicans will do if they do win the triple crown in 2016.  The will undoubtedly cut taxes at the top and gut regulations.  That’s what they do.  They won’t destroy Social Security, Medicare or Medicaid because they aren’t suicidal.  They may very well repeal the individual mandate for Obamacare in hopes of inducing a death spiral.  I wouldn’t bet on any further developments reigning in our national surveillance apparatus.  (I don’t bet on that anyhow).  They may or may not revive the practice of torture or start another war.  They will probably decide that deficits only matter when a Democrat is in the White House.  I have no sense of whether they will decide that tight money is only a universal and timeless moral imperative when a Democrat is in the White House or not.  But what I am confident Republicans will do if they win out in 2016 is sigh with relief that the country has been rescued from the Democratic usurpers, and that it will never again suffer the travesty of a Democrat in the White House.  And the next time a Democrat is, in fact, elected to the White House, I shudder to imagine the freakout.

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*I saw this close at hand as people on Medicaid or other state policies saw them cancelled – to be replaced, but the replacement called for work, let to anxiety, and often to a lapse in coverage.

Update on Election Turnout

My own impression for this election was that turnout was pretty good. I went down for the last day of early voting, and the line was snaked well outside the door and backed up far enough that it had to turn to keep from obstructing parking. But apparently my impression was mistaken. General reports around the area were of lower turnout than 2010. Lower than 2010 doesn’t say all that much. Given the level of passion in 2010, I assume election turnout was unusually high that year. So lower turnout this time might just be a return to normal levels. But apparently nationwide, voting levels were unusually low for a midterm, by some accounts the lowest since 1942.

This is actually kind of encouraging. It means that even in an unusually low turnout year, voters snake out into the parking lot for early voting. It means civic engagement is higher than I thought

First Amendment Jurisprudence, Continued

When we last left the First Amendment, the Supreme Court had upheld the conviction of a group of anarchists and radical Socialists for printing inflammatory pamphlets denouncing the US and calling for strikes.  For the first time, Holmes and Brandeis dissented, saying that the First Amendment protected inflammatory speech only if it posed a "clear and present danger" of imminent lawless conduct.

The next major First Amendment case was Gitlow v. New York, another 7-2 decision.  This one upheld the conviction of a group of radical Socialists (for all intents and purposes, Communists) for publishing a Manifesto calling for violent revolution, although it did not incite any actual violence. This time the defendants were prosecuted, not under the federal Espionage and Sedition Acts, but under a New York statute against "criminal anarchy," which banned calling for the violent overthrow of the government or other calls for political violence.  The opinion made quite clear that advocating a socialist program through elections or other peaceful means was lawful; the only question was advocacy of political violence.  The defendants appealed on the grounds that the state statute violated the Fourteenth Amendment guaranty that no one could be "deprived of liberty . . . without due process of law," and argued that "liberty" under the Fourteenth Amendment included freedom of the press.  In other words, the Fourteenth Amendment incorporated the First.  The Supreme Court said that:

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.  

Significantly, they did not actually decide but merely "assumed" that the Fourteenth Amendment incorporated the First.  But they did expressly repudiate an earlier opinion denying that the Fourteenth Amendment protected freedom of speech and the press from the states.  This was an important piece of jurisprudence -- the First Amendment had never before been held to apply against the states.  It went on to say, however, that freedom of speech did not protect "utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace," and therefore upheld the conviction, saying that the state had even stronger authority to punish calls for violent revolution.  This point was emphasized several times over.  It further held that so long as the statute is constitutional and the publication violates it, it does not matter whether any actual violence was incited or not.  Holmes and Brandeis once again dissented, again citing the "clear and present danger" doctrine and applying it to the states as well as the federal government.  Holmes also suggested that if the manifesto had been written to induce an immediate uprising, even if it did not incite any violence, his decision might have been otherwise.  The Wikipedia, incidentally, says that Gitlow is also significant as the first major First Amendment case that the ACLU argued before the Supreme Court, and that (a sign of changing times), the Governor of New York pardoned the defendant shortly after the Supreme Court made its decision.

Two years later came the case of Whitney v. California.  This time, the defendant was a Communist prosecuted under California's "criminal syndicalism" statute banning advocacy of violent revolution or membership in an organization advocating violent revolution.  Once again, the Court held that California's "criminal syndicalism" statute did not violate First Amendment guarantees of freedom of speech, the press, and association, although this time they appear to have taken for granted that the First Amendment applied to state as well as federal governments:

The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. [Cite]. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear.

Brandeis and Holmes wrote a "concurrence" that sounded very much like a dissent:

There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus the accused is to be punished, not for attempt, incitement or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.

Brandeis once again argued the "clear and imminent danger" and,while he said that a state could ban speech that caused a "clear and present danger" of imminent lawlessness, the actual danger had to be established to allow a conviction.  Since "clear and present danger" had not been defined, he attempted to define it; 

In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

He nonetheless agreed with the conviction because, although forming a political party dedicated to revolution at some remote date in the future was not a crime, he believed there was sufficient evidence of actual criminal conspiracy that conviction might be justified.

A Brief Note on the Election

I voted today.  It was the last day for early voting, and a lot of people were there because they wanted to avoid long lines on Tuesday.  All I can say is that if there is a lot of indifference in this election, it isn't showing at the polling placed.  The line snaked across the voting place, out the door, and long enough that they had to bend it to avoid obstructing traffic in the parking lot.  This may have been in part because it was a long ballot and took a long time to fill out.  But the interest seems to be genuine.

(PS:  One clear difference between Albuquerque and Santa Fe.  Albuquerque, as a larger town, has a lot more judges up for election or retention, which makes the ballot longer).

A Short Digression on "Second Amendment Solutions"

It is getting to be a schtick on the right wing of the Republican Party.  A hardline candidate shows just how hardline he/she is by saying the s/he really hopes that we don't have to resort to Second Amendment solutions, but you should always keep your gun just in case.  Invariably the candidate talks about the need to be prepared to engage in violent revolution, assuring everyone that this is a very remote and completely hypothetical possibility, while hinting that this extremely remote and purely hypothetical possibility just might come about if the Democrats win the next election. Presumably candidates hoping to hold office do not seriously intend to engage in violent revolution. So why do they keep hinting at it?

Suggestion 1.  It expresses tribal membership:  Kevin Drum is fond of this one in other things.  In order to win the primary, Republican candidates have to pledge themselves to all sorts of nutty, far-out ideas that would be wildly unpopular (including with most of the Tea Party).  The press gives them a free pass on this (Drum complains) because it accepts that they don't actually mean any of that but are just saying it to show proper tribal affiliation and let their fellow Republicans know just how outraged they are that the Democrats are in power.

Suggestion 2.  Plausible deniability:  I have discussed the distinction between a dog whistle and plausible deniability before.  A true dog whistle has one meaning that is open and apparent to the general public and a hidden, covert meaning to insiders.  The whole point is for outsiders not to be aware of it.  A plausibly deniable remark, on the other hand, is susceptible to two possible meanings, one innocent and one offensive.  The offensive meaning is at least as apparent as the innocent one and often more so.  The goal is to be called out on the offensive meaning and then become indignant at how the "lamestream media" is persecuting you.  In the case of "Second Amendment solutions," the goal is to hint as broadly as possible that you consider armed rebellion a proper response to losing the next election and, if confronted, assure the press that really you consider the need rebellion to be extremely remote and purely hypothetical and that you just keep stressing it as a matter of principle.

Suggestion 3.  It pisses off the liberals: Here is the article I recently read that inspired this post by proposing that explanation:

Now this [talk of armed rebellion] is a guaranteed applause line among Con Con audiences, for reasons that have relatively little to do with gun regulation. The idea here is to intimidate liberals, and “looters” and secular socialists, and those people, that there are limits to what the good virtuous folk of the country will put up with in the way of interference with their property rights and their religious convictions and their sense of how the world ought to work. If push comes to shove, they’re heavily armed, and bullets outweigh ballots. It’s a reminder that if politics fails in protecting their very broad notion of their “rights,” then revolutionary violence—which after all, made this great country possible in the first place—is always an option. And if that sounds “anti-democratic,” well, as the John Birch Society has always maintained, this is a Republic, not a democracy.

In other words, liberals tend to resent being told that armed rebellion might be justified if they win the next election.  Right wing politicians have noticed this and therefore trot out the threat of armed rebellion as an applause line, not actually meaning it, because it pisses off liberals.  It is, after all, part of a longstanding tradition on the right to spew a lot of outrageous talk with the clear but unspoken understanding between speaker and audience that such talk is pure theater and not to be taken seriously. The main purpose is to give offense.

The Beginnings of First Amendment Jurisprudence

So, with that general background in mind, let us have a look at early First Amendment cases before the Supreme Court.

The first case widely quoted was Schenck v. US.  The case was actually decided in 1919, after WWI was over, but while the post-war Red Scare was at its height.  The Bolsheviks had taken over Russia and were engaged in civil war against a wide range of opponents.  The Bolsheviks had only recently changed their name to Communist and founded the Comintern, an international organization of Communist parties, all taking orders from Moscow, and trying to stir up revolution in prostrate belligerents of the war.  Left-wing revolution and attempted revolution and right wing repression were breaking out all across Europe.  The United States was not spared as radical Socialists declared general strikes, government and veterans cracked down, and the worst race riots since Reconstruction gripped the land.  A short but severe post-war depression did not help.  It was in this atmosphere that the Supreme Court received the appeal of the prosecution of Charles Schenck, a Socialist for circulating anti-draft pamphlets to young men subject to the draft, urging them to resist.  He had not engaged in any sabotage or terrorism.  Convicted, Schenck appealed on the grounds that the pamphlets were protected by the First Amendment.  The Supreme Court unanimously upheld the conviction in an opinion written by Oliver Wendell Holmes.  Holmes conceded that the First Amendment might do more that just forbid prior restraints (this issue had never been decided at the time).  He also conceded that "in ordinary times" saying all that was in the circular would have been protected.  But he argued that war as an extraordinary situation, and that if obstructing the draft could be a crime, so could conspiracy to obstruct the draft, as by circulating pamphlets.  The opinion contains two famous quotes.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."  This, of course, is usually paraphrased as, "Freedom of speech does not include the right to yell fire in a crowed theater."  Holmes was arguing that circulating such pamphlets in wartime was tantamount to yelling fire in a crowded theater.  He also argued that the First Amendment did not protect words that "create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."  "Clear and present danger" has become a watchword for when free speech may be restricted.

Most accounts I have read of the First Amendment cite Holmes' authorship of Schenck and leave it at that.  They go on to describe how Louis Brandeis began dissenting, how he won Holmes over, and how the two of them ultimately changed the mind of the entire Supreme Court.  But Wikipedia gives a fascinating and little-known sidelight.  An earlier case reached the Supreme Court in which the defendant was prosecuted for signing an anti-war petition.  While the majority favored upholding the conviction, Holmes wrote a dissent powerful enough that the Court backed down and dropped the case altogether.  So apparently Holmes had some unease with such prosecutions from the start.

The Supreme Court ruled the same way, again in 1919, again unanimously and again in an opinion by Holmes in Frohwerk v. US.  This time, the defendant was prosecuted for publishing an anti-war newspaper.  The paper was not specifically sent out to potential draftees, but was quite strong in its denunciations of the war, sometimes to the point of appearing to favor Germany over England.  Holmes acknowledged that, "We do not lose our right to condemn either measures or men because the country is at war," but argued that speech advocating a crime was not protected.  And, as in Schenck, the Court held that an anti-draft publication was sufficient grounds for conviction for conspiring to thwart the draft.

Holmes made it three for three in the unanimous Supreme Court cases he wrote in 1919 when he wrote Debs v. US, this time  upholding the conviction of Socialist leader Eugene Victor Debs for an anti-war speech.  This time Holmes felt the need to emphasize that criticizing the war was not, in and of itself, a crime, so long as the criticism did not interfere with the draft.  But Debs praised people imprisoned for interfering with the draft, and that was grounds enough for the Supreme Court to uphold his conviction.

But he changed his mind, still in 1919, in the case of Abrams v. US, in which the Supreme Court upheld yet another conviction under the Espionage and Sedition Acts but Holmes, joined by Louis Brandeis, dissented.  In that case, four Russian Jewish anarchists and one socialist distributed anti-war pamphlets directed primarily at US intervention in Russia's civil war, and including some that openly called for revolution or at least strikes in the munitions industry.  They were convicted under the Espionage and Sedition Acts, and appealed on the grounds that their publications were protected by the First Amendment.  By a vote of 7-2, the Supreme Court upheld their conviction, but this time Holmes dissented.  This case was a bit delicate because, despite the inflammatory language of the leaflets, they were not actually directed at our official, declared war against Germany, but only against our unofficial, undeclared intervention in Russia's civil war.  Technically speaking, the Sedition Acts were only aimed at speech the disrupted the war against Germany.  In fact, the defendants argued just that.  The majority, however, said that their call for a general strike would disrupt the war effort against Germany, so the speech was illegal.  As for the First Amendment, the majority simply cited Schenck and Frohwerk to show otherwise.  

Holmes, joined by Brandeis, dissented.  He argued first that calling for a general strike did not violate the Acts unless it was done with the specific intent to disrupt the war with Germany.   More importantly, he argued that the First Amendment allowed speech to be criminalized only if it posed a "clear and imminent danger" of illegal conduct.  This standard applied either in war or in peace, although it might be more stringently applied during war.  He also argued that the intent to bring about illegal conduct with one's speech was a necessary condition to it being subject to prosecution.  Here, the intent was to disrupt the intervention in Russia, not the war with Germany, so there was no criminal intent.  Holmes cited, of all cases, Schenck, Frohwerk,  and Debs  to support his dissent, even those these cases upheld prosecution of less inflammatory speech.  And finally, for the first time in the history of the Supreme Court, Holmes agreed with the court of public opinion and expressed the view that the Alien and Sedition Acts of 1798 were unconstitutional.

I intend to follow soon with more cases on the growing acceptance of free speech rights by radical groups.