Supreme Court Appointment and Obamacare

 

Various commentators have been gaming out the effects of a Supreme Court nomination on the election.  The obvious answer, so far as Roe v. Wade goes is that it will raise the stakes, and raise passions, mobilization, and turnout on both sides.  I do not pretend to know which side will benefit more.

But give the Democratic leadership credit, for once, with keen political sense.  They have chosen their message wisely.  They will avoid discussion of abortion, which is divisive, and focus on Obamacare, which is not.

That may be surprising, given how divisive Obamacare has been in the past, but currently the Supreme Court is facing a lawsuit seeking to strike down the entire law.  Consider the implications.  

Obamacare expanded Medicaid.  Pre-pandemic, about 10 million people had health insurance under the Medicaid expansion.  It also set up health insurance exchanges.  Pre-pandemic, about 10 million people bought health insurance on the exchanges. Mass layoffs during the pandemic have presumably raised both figures, but let us assume them for the time being.  Repeal the entire law, and both provisions immediately vanish.  That means the Supreme Court could strip 20 million people of their health insurance overnight!

But that is not what Democrats are focusing on.  Repeal will also remove all Obamacare's requirements that health insurance companies cannot deny coverage for pre-existing conditions.  Given the number of people with pre-existing conditions, or who know someone with a pre-existing condition, this is what Joe Biden called a BFD.

The practical upshot of all of this is that basically no one favors the wholesale repeal of Obamacare. And yet their is a lawsuit to do just that schedules for hearing in front of the Supreme Court shortly after the election.  And Donald Trump has ordered the Department of Justice to argue in favor of repeal, an action that one Republican spokesman described as making as much political sense as diving headfirst into a wood chipper.  The Supreme Court did its best to keep Donald Trump away from the wood chipper by postponing argument until after the election.  But sometimes the unpredictable happens, and suddenly the question of whether a Trump appointee would strike down the protections of Obamacare has become a major election issue.

That raises two other questions.

One is what the Supreme Court would do. There is more or less unanimous agreement, even among people who pressed for repeal in the past, that the argument lacks legal merit.  But when has that ever stopped a determined Supreme Court?  I am reasonably confident that if Trump is reelected, a Republican majority on the Supreme Court will save him from himself and uphold the law.  The country will be exposed to a bunch of outraged tweets, but no other harm will be done.  

If a Democrat is in the White House, I can see a Republican Supreme Court striking down Obamacare. Underlying whatever fancy justifications the Supreme Court can come up with, the real reasons will be simple.  First, they will consider the disastrous fallout to be suitable punishment to Democrats for passing such a monstrosity.  Second, they will trust that Democrats will be unable to come up with a replacement fast enough to prevent disaster and will count on the public to blame the party in the White House for the disaster and vote accordingly.  This may be a miscalculation.  If the Supreme Court is obviously, immediately at fault for the mess, and if the Democrats make skilled use of the bully pulpit (a dubious bet, I realize), the Supreme Court just might be blamed, and suddenly court packing will not seem so radical after all.

The second question is why Donald Trump is doing something that makes as much sense as diving head first into a wood chipper.  So far as I can tell, the answer is simple ignorance.  Republicans attempted to find a replacement for Obamacare, failed, and realized they are not able to do health care policy.  They decided that they were better off leaving well enough (or bad enough) alone.  Donald Trump seems to be the only person in the country not to notice what happened.  He keeps saying Republicans have a great plan that will deliver great care at a fraction of the cost.  Maybe he actually believes it.  Or maybe he believes that if he just says so loud enough, no one will notice the 20 million people who lose their health insurance and the countless people who lose coverage for pre-existing conditions.  

After all, his base has managed not to notice a pandemic that has infected over 6 million Americans and killed some 200,000.

What I Fear Most a Trump Appointment

Ruth Bader Ginsburg

 To be clear, what I fear most from a Trump appointment is not the repeal of Roe v. Wade.  In fact, I am at odds with almost all of liberal orthodoxy here, but I believe that Roe was a mistake from the start.  There is not one clause anywhere in the Constitution that says anything even remotely related to abortion.  While I favor a broad interpretation of the actual language of the Constitution, I do not favor making up rights out of whole cloth.  I do not favor substantive due process, and I see Roe as a particularly dangerous decision for exhuming the corpse of that long-buried doctrine and creating a zombie.*

The greatest danger of substantive due process is that there is no way of determining what is and is not a substantive due process right.  So far as I can tell, the Supreme Court goes about it one of two ways.  One is to look to rights recognized by common law.  That has the advantage of offering at least some guidance, but the disadvantage of tying us to a centuries old set of rules, many of which were archaic even when the Constitution was written.  The other is to attempt to discern certain fundamental rights.  But that simply means letting judges invent rights out of whole cloth.  If one judge thinks an abortion ban violates a fundamental right, what is to stop another judge from deciding that labor protective legislation violates the fundamental right of freedom of contract?

Abortion, like any other topic not expressly addressed in the Constitution, should be left to the ordinary legislative process.  

Furthermore, the Supreme Court has chipped away at Roe so far at to make it almost meaningless -- despite the decision that remains on the books, many states have passed legislation that makes abortion almost impossible to obtain.  Some states have truly extreme measures on the books -- measures that would ban IUD's, hormonal contraceptives, and in vitro fertilization.  State legislatures are able to pass such legislation because they know it will be struck down.  If states actually had to deal with the consequences of their more extreme laws, somehow they would find their principles not quite so rigid as they thought.

So I am fine with the reversal of Roe v. Wade.  It is other things I fear.**

I fear an extreme economic royalist Supreme Court striking down almost any regulation of economic activity as unconstitutional.

I fear a radically partisan Supreme Court, upholding the most extreme claims of executive power under a Republican President, but on terms so narrow and technical as to allow them to deny even the most modest claims of a Democrat.

And I fear the overturn of Obamacare.  

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*I hope to post more on that at a later date.
**One thing I don't fear is reversal of most of the Supreme Court's criminal procedure provisions.  Conservative justices appear to take the rights of the accused seriously.  I suppose in a second Trump term that might change.

What Does Alexis de Tocqueville Tell us About Ruth Bader Ginsburg?

 

So, what do we say in the face of this new development -- the passing of Ruth Bader Ginsburg?  Clearly it has raised the stakes of the election, as if those stakes were not high enough already.  Donald Trump won the last election in large part because enough people thought it worth the risk of such an unorthodox candidate to have a Republican appoint the next Justice to the Supreme Court.

I would turn for guidance, as I am wont to do, to Alexis de Tocqueville's Democracy in America.  Tocqueville warns that making the chief executive elective invites regular crisis:

Whatever the prerogatives of the executive power may be, the period which immediately precedes an election and the moment of its duration must always be considered as a national crisis, which is perilous in proportion to the internal embarrassments and the external dangers of the country. Few of the nations of Europe could escape the calamities of anarchy or of conquest every time they might have to elect a new sovereign. In America society is so constituted that it can stand without assistance upon its own basis; nothing is to be feared from the pressure of external dangers, and the election of the President is a cause of agitation, but not of ruin.  

 What form does this crisis take?

For a long while before the appointed time is at hand the election becomes the most important and the all-engrossing topic of discussion. The ardor of faction is redoubled; and all the artificial passions which the imagination can create in the bosom of a happy and peaceful land are agitated and brought to light. The President, on the other hand, is absorbed by the cares of self- defence. He no longer governs for the interest of the State, but for that of his re-election; he does homage to the majority, and instead of checking its passions, as his duty commands him to do, he frequently courts its worst caprices. As the election draws near, the activity of intrigue and the agitation of the populace increase; the citizens are divided into hostile camps, each of which assumes the name of its favorite candidate; the whole nation glows with feverish excitement; the election is the daily theme of the public papers, the subject of private conversation, the end of every thought and every action, the sole interest of the present.

There is simply no denying that this is a danger of elective government.  Tocqueville goes on to reassure us that once the election is over, everything calms down to the point that one wonders what the excitement was about.  The commentator in my translation remarks that this is not always true, notably in the case of Lincoln.  (Tocqueville wrote in the early 1830's, before slavery became the great issue of the day).  

Tocqueville also notes that the crisis of elections is reduced by making them frequent because less is at stake:

When elections recur at long intervals the State is exposed to violent agitation every time they take place. Parties exert themselves to the utmost in order to gain a prize which is so rarely within their reach; and as the evil is almost irremediable for the candidates who fail, the consequences of their disappointed ambition may prove most disastrous; if, on the other hand, the legal struggle can be repeated within a short space of time, the defeated parties take patience. When elections occur frequently, their recurrence keeps society in a perpetual state of feverish excitement, and imparts a continual instability to public affairs. Thus, on the one hand the State is exposed to the perils of a revolution, on the other to perpetual mutability; the former system threatens the very existence of the Government, the latter is an obstacle to all steady and consistent policy. The Americans have preferred the second of these evils to the first; but they were led to this conclusion by their instinct much more than by their reason; for a taste for variety is one of the characteristic passions of democracy.

Tocqueville goes on to deplore the mutability of U.S. laws and lack of steady administration.   That is no longer our problem.  In these days of extreme polarization and multiple veto points, our problem is just the opposite -- the system has become so rigid that it is almost impossible to pass important legislation of any kind.  

And we have moved closer to the perils of infrequent elections, i.e., people no longer believe that if they lose the election, they can live to fight another day.  One of the major reasons is that lifetime federal court appointments are at stake.  Parties may "exert themselves to the utmost in order to gain a prize which is so rarely within their reach" -- not the Presidency, but a majority on the Supreme Court.  And the loss of that majority may seem "almost irremediable."

Today, Democrats are playing with two options -- expanding the court to eleven members, or limiting Supreme Court justices to long (typically 16 years) and staggered, but fixed terms.  

The former option is clearly constitutional, but clearly seen as radical. The last time anyone attempted it was Franklin Delano Roosevelt, who proposed to expand the Supreme Court from nine members to fifteen.  He met with immediate, intense pushback and backed down.  Maybe such an expansion would been seen as legitimate this time, and maybe not.  The obvious weakness, though, is that it invites retaliation.  If Democrats can raise the number of Supreme Court Justices to eleven, then why won't Republicans, next time they are in power, raise the number to thirteen.  This invites an endless cycle.

The latter option is more radical by far and constitutionally dubious, but offers the possibility of turning down the temperature.  The Constitution says, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."  Does this require Supreme Court justices to sit on the bench for life (or at least until death, retirement, resignation, or impeachment)?  Or does it merely require Supreme Court justices to hold some sort of federal judgeship for life, and allow demotion to, say, an Court of Appeals?  I am inclined to think this would have to go before the Supreme Court, which would have an obvious conflict of interest in deciding it.  There would also be the question of the status of current Justices, and how to stagger appointments.  Nonetheless, if we knew each President would have the opportunity to appoint a fixed number of judges to fixed terms, it would lower the stakes in elections.  It would also remove the incentive to appoint the youngest judges feasible, and for judges to leave only in the term of a President or their party, or in a coffin.

New Mexico COVID Updates

 So, I might as well give the latest update on COVID in New Mexico, and it looks good.  We have had 795,247 tests done out of a population of about 2.1 million.  This does not necessarily mean that over a third of the population has been tested; some of these are repeat tests.

Our positivity rate has been falling steadily and is now at 3.29%.  New tests are well under 3% positive.  

Death rates, after holding steady at about 4.5% early on, started falling.  They hit the lowest in mid-August at 3.03% and have now stabilized and are moving up slightly.  I do not think this is necessarily a bad sign.  Death are, after all, a lagging indicator.  A rising death rate may simply mean the system is not being overwhelmed with new cases.

The hospitalization rate was steady at about 17% earlier in the epidemic and also started falling, below 16%, 15%, 14%, and 13%.  It now appears to be stabilizing a little above 12%.  The absolute number of people hospitalized is way down.  After peaking around 223, it is now in the 60's.

Another lagging indicator is looking promising.  The percentage of infected people who have recovered is over 50% and rising.  Reported recoveries are almost certainly fewer than actual recoveries.

The worst outbreak in the Albuquerque area is past.  Ditto Sandoval County to the north of Albuquerque, where the pueblos are.  The worst also appears to be past in the Navajo northwest part of the state.  Few new cases are coming in, but death rates remain the highest in the state.  

The new center appears to be in the eastern parts of the state.  Incoming from Texas, maybe.  Typically of a new outbreak, the death rate there is low.  I expect it to get higher.  The death rate in Las Cruces, anomalously low before, is creeping up, though still well below the state average.  The real anomaly now is Santa Fe, with over 800 cases, while deaths held steady a 3 for a long time and are now at 4.  I don't know what to make of it.

How Will We Know if a President Biden is as Dangerous as a President Trump?Will

I Alone Can Fix It

Look, I get it. Democracy is hard.  It requires us to be good losers -- and gracious winners.  It requires us to value procedure over substance.  And above all, it requires us to accept that elections have consequences, and that when the other side wins, they will enact policies one's own side does not like, and that this has to be accepted as normal.

Alas, I did not save the link to the post by Erick Erickson in which he began to acknowledge as much.  He acknowledged that after years of believing that the survival of liberty depended on defeating Obamacare, and then on rolling it back once it passed, it had become obvious that it was not politically feasible to repeal Obamacare, and that liberty would, after all, survive.  

Others have commented that this is nothing new.  Republican donors and think tank policy planners are all formally committed to rolling back the New Deal, even though no Republican politician would ever dare actually do such a thing.  Liberty would end with the passage of Social Security.  And when Social Security turned out it was here to stay, Liberty would end with Medicare and Medicaid.  And when those became too well established to repeal, liberty would end with Obamacare.  

All of which leads me to this column in the Washington Examiner.  It is, essentially, a rejection of the Never Trump approach in favor of what they regard as the sensible conservative view:

Some made their peace with Trump — wincing at his nutty tweets while recognizing that he was their only chance to advance their agenda and viewing him as ultimately an ally in the battle against the Left.

Others choose to take things issue by issue — criticizing his outrageous statements and actions while applauding decisions with which they agreed. Yet another group of dead-enders have sought to oppose him at every turn, even when he does something they may have, in a previous life, agreed with.

Never Trumpers, it warns, are "dead-enders"  who let their personal distaste for Trump outweigh their support of him on policy matters.  The author sees their support for Democrats as shocking, even though it can be charitably interpreted:

The least cynical version of their argument is that getting rid of a toxic president, who pays deference to vile conspiracy theories from the White House, is crucial to the future of the republic. They argue that it is worth risking four years of a liberal president to get one who is willing to uphold some basic standards of the office.

To which I can only say, duh!  Pushing vile conspiracy theories from the White House is the work of a demagogue who poses a serious threat to functioning democracy and the rule of law.  Nor is having a liberal President some sort of extraordinary risk that endangers the future of the Republic.  As a matter of fact, having a liberal President is something that has happened quite regularly and our Republic has survived it just fine.  

The author then runs by a parade of horrors a Biden Presidency might introduce -- a public option added to Obamacare, a $15 minimum wage, reviving the Iran deal, liberal judges, perhaps an expansion of the judiciary.  At the same time, the author seems to acknowledge that these are well within the mainstream of American politics and that significant portions of the political spectrum might support them, or at least not see them as all that bad.  

Is it reasonable and acceptable for Never Trumpers who supported Biden to oppose these policies?  Of course it is.  But it is also reasonable for Never Trumpers to oppose these policies as ordinary policy disputes, and not in the all-out survival-of-the-Republic way that they oppose Trump.  

The author acknowledges that Republicans may respond to defeat by becoming (even more) radicalized and fall into "conspiracy and extremism."  He also acknowledges that candidates "even more fringey than Trump" are starting to win primaries.  But he doesn't see any of this as seriously problematic, so much as an understandable reaction to riots in US cities and the rise of a radical Left.

I agree that a Biden Administration would have a problem on its hands reigning in the radical Left, and that failure to do so will mean ruin and reaction.  But it is also entirely reasonable and appropriate for Never Trumpers to work on reigning in the radical Right, which has historically been a greater threat to democracy than the far Left.

At what point should Never Trumpers start treating a Biden Administration as just as dangerous as a Trump Administration, rather than a set of normal policy differences?  I would say, when Biden starts to look as procedurally dangerous as Trump.  Will Joe Biden evade the Constitutional requirement of submitting appointments to the Senate by appointing acting officials?  Will he shift funds to pay for pet projects that Congress refused to fund?  Will he make a blanket rejection of all oversight subpoenas by Congress?  Will he say that courts have no jurisdiction to enforce such subpoenas?  Will he sue to block third party subpoenas that might reveal personal information? Will he resist sending aid to red states hit by hurricanes or tornadoes because they didn't vote for him?  In case of national emergency, will he demand that governors praise him as a condition for getting assistance?  Will he cut off military aid to friendly foreign governments to force them to investigate his political rivals?  Will he casually steal government property because he assumes that it is his personal property?  Will he refused to divulge his finances?   Will he routinely -- and proudly -- violate the Hatch Act and treat the federal government as a campaign prop?  When he makes mistakes (as he undoubtedly will), will he force apolitical agencies like the NOAA to change forecasts to match his misstatements?  And above all else, will he refuse to recognize elections as legitimate unless he likes the outcome?

If a prospective Biden Administration does these things, then Never Trumpers, and Democrats as well, should oppose him with the all-out fury that they opposed Trump.

Otherwise, these are just normal policy disputes and should be treated as such. 

Donald Trump -- Post Reality President

Make America Great Again

 What most stands out about Donald Trump and makes him different from other Presidents is his complete indifference to reality, as opposed to appearance.

Of course, many President have found appearance easier to manage than reality,  Many have sought to create illusions; many have preferred to address illusion than reality.  But all have had at least some awareness that reality is out there.

Donald Trump's true innovation is to realize that reality is so large and so complex that voters never see more than a tiny bit of it, so why bother with reality at all. If you promise to build a wall on the southern border, just build a few miles and say you are building the wall along the entire border.  Most Trump supporters have never been to the border at all and have no idea what it looks like.  And for the ones who have been to the border and seen that the wall is not build, just that that most of it is built and their area is one of the last.  How many Americans have the time and money to travel the entire length of the border to see how much of the wall is built?  And how many who could have better things to do?

Getting Mexico to pay for the wall is even easier.  You don't have to get Mexico to pay for the wall at all.  Just say Mexico is paying for the wall.  How can anyone prove you wrong?

The same applies to "taking the oil" in the Middle East.  During the 2016 campaign, a few debate moderators tried to raise the issue of what a logistical challenge seizing every oil field in an entire country would be.  But Donald Trump cares nothing for such things.  Just send a few soldiers to guard a few oil wells and say you have "taken the oil."  Who is going to go the the country in question and personally investigate which oil fields we do and do not control?  

And if any reporter tries pointing out inconvenient facts about these things, just dismiss it as "fake news."  How will your followers know the difference?

The same approach applies to the economy as well.  When your opponent is in charge, proclaim the economy a disaster.  As soon as you take over, proclaim the economy the best ever.  Nothing has to change except the marketing pitch.  The day before the election, the economy was a false prosperity, propped up by low interest rates, ready to crash as soon as rates were normalized, which must happen.  If the stock market was doing well, a bubble was forming and about to burst.  And Labor Department statistics showing low unemployment were falsified.  The day after the election, the economy was the best ever!  Any proposal to raise interest rates was sabotage.  The stock bubble filled in overnight and all gains were real!  Unemployment statistics were only fake with Obama in power!  Now they are real!

So naturally his approach to COVID has been the same.  Ignore it and hope it goes away.  Pretend it isn't happening,  And when the disruptions caused by attempts to stop the disease become too obvious to ignore, go back to normal and hope no one notices the outbreak.

Donald Trump, Captain Queeg, and Colonel Jessup

 I follow Tom Nichols following Donald Trump's press conferences.  Nichols is all in favor of broadcasting Trump press conferences because he believes that seeing Trump for who he is will do him immense damage.  He also refers to Trump going "full Colonel Jessup."  

I only half agree.  

There are two famous scenes from military courtroom dramas.  In both scenes, military men are being court martialed.  In order to defend them, their lawyer has to attack their much-respected superior officer and destroys him on the stand.  

I refer, of course, to the Captain Queeg scene in The Caine Mutiny and Colonel Jessup in A Few Good Men.

Consider the differences between the scenes. The Jessup scene is bombastically overacted, while the Queeg scene is done with excellent restraint.  But the substantive differences are more important.

Captain Queeg is incoherent.  Colonel Jessup is entirely coherent.  Both men might be called paranoid, but it is a very different kind of paranoia.  Captain Queeg is facing a very real life-and-death emergency in a devastating war but spins imaginary plots against him.  Colonel Jessup imagines no plots against him, but does insist on treating a peacetime assignment at a time of unprecedented security as an all-out war.  Both men might be called self-centered.  But Captain Queeg can't rise above himself and sees plots everywhere against him personally.  Colonel Jesusp is defending the institutional authority of the Marines and his role in them and sees both the Marines and himself as institutional defenders of the free world.

But above all else, Queeg does not present an institutional world view.  Jessup does.*  His world view is flawed, and the audience is intended to see it as flawed.  Jessup confuses the argument that the military is necessary to the country's defense and the defense of freedom and deserves respect and honor for that -- and that the military should therefore be unaccountable.  Not just that the military cannot be held accountable by civilian leadership (civilian control of the military is basic to our system of government), but that the military's internal system cannot hold front line commanders accountable.  Colonel Jessup is arguing for an unaccountable rogue institution that can do whatever it wants and answer to nobody.  Underlying this view is the assumption that the military always acts with such a high-minded patriotism that it will never fall prey to petty motives of personal gain.  Jessup himself is a pretty good refutation of that assumption.

Nonetheless, not everyone sees things the way the movie makers intended the audience to see things.  Colonel Jesusp has his admirers, the people who applaud him and agree with everything he said.

Captain Queeg has no admirers.  No one is going to defend Captain Queeg, who has clearly sunk into incoherent, self-pitying paranoia and is clearly unfit to command a ship.

And I think it not to great a stretch to assume that there is a very large overlap between Colonel Jessup's admirers and Donald Trump's admirers.  Quite simply, Donald Trump's supporters support him because they think he is Colonel Jessup.

We need to undermine Trump by showing him up as Captain Queeg.

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*And, interestingly enough, after the trial the defense lawyer gives a lower-key version of Colonel Jessup's rant, telling the crew that they owe their captain unconditional loyalty no matter how tyrannical, incompetent and even cowardly he may be, and that anyone who is not a career military officer has no right to hold career military officers accountable.  His speech is less convincing than Jessup's because it is refuted by the entire movie.  It does have some value in underlining the contrast between the brave and honorable first mate who made an ethically questionable decision under circumstances that left no good options, took responsibility, and was prepared to fact the consequences -- and the cowardly officer who instigated the mutiny and then denied responsibility and left others to face the consequences.