Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)
Randy says:
If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges.
Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."
Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing.
He listened, he really, really listened!
Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.
Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.
Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.
But that's all the more reason to do good theater.
One thing I noticed (and York doesn't mention) is that Pelosi made a snide remark about the size of the gavel Boehner picked out for the gavel-passing ritual:
I now pass this gavel, which is larger than most gavels here but the gavel of choice of Mr. Speaker Boehner…
Now, my ears have been tuned by decades of immersion in feminism and Freudianism, and I say that's an intentional reference to the phallus and the will toward domination it symbolizes. Nancy Pelosi intended to provoke disrespectful titters, I think — with deniability, of course.
Instead of calling Pelosi on her disrespect, comedian Jimmy Kimmel runs with the feminism and visualizes domestic* violence:
"He eats breakfast alone at Pete's Diner, a cramped eatery a few blocks from the Capitol, and checks his Facebook page on an iPad. At night, he stops whatever he's doing at 10 o'clock."
Boehner's got a nice, humble image that suits the times — these post-Pelosi times. I like the picture of the man who's replacing the woman being a man with a vacuum cleaner...
... and it's not even a metaphorical vacuum cleaner. (I seem to remember a magazine cover illustration of Gerald Ford after the Nixon resignation. He was vacuuming the Oval Office.)
On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."
An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:
Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.
Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....
Well, you'll feel better if you dance like Fred Astaire:
Here's Fred with the words to the Gershwins' "They All Laughed."
They all laughed at Rockefeller Center Now they're fighting to get in They all laughed at Whitney and his cotton gin They all laughed Fulton and his steamboat Hershey and his chocolate bar Ford and his Lizzie Kept the laughers busy That's how people are They laughed at me wanting you Said it would be, "Hello, Goodbye." But oh, you came through Now they're eating humble pie
But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power. Chief Justice John Marshall laid down the broad interpretation:
This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.
This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.
But I'm not joshing, Josh. The reason there are so many law articles called "Taking X Seriously" is that we don't rule out a proposition of constitutional law simply because no one seems to taking it seriously right now. We work through the analysis, and maybe we discover that it should be taken seriously. I mean, think, Josh, think. There was a time when people laughed at the idea of gay rights. There was a time when people laughed at the idea of women's rights.
I started out today chiding a righty who was — unwittingly — saying something that belonged in the mouth of a lefty. And now here comes a lefty, talking like a righty. This is what happens when politicos talk about law. They're super-consistent at the level of outcomes, and they don't notice all the inconsistencies they spout at the level of legal reasoning.
Josh continues:
And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face.
See? Resorting to the laugh test. But, Josh, it's not "the idea that buying health care coverage does not amount to 'economic activity,'" it's the idea that not buying health care coverage does not amount to "economic activity." That's quite a bit less hilarious.
The first rebuke of Pelosi by her colleagues came Tuesday, when Democratic dissidents forced a six-hour caucus meeting to vent their frustrations. The next blow came Wednesday, when the dissidents forced a secret ballot on whether to postpone a vote on Pelosi - and then won a larger-than-expected 68 votes. That essentially meant a vote of no-confidence in Pelosi by 35 percent of the incoming Democratic caucus.
And in yet another rebuke of the fallen speaker, 43 Democrats voted for her symbolic challenger, moderate Heath Shuler (N.C.) - even though few regarded Shuler as a qualified candidate and only a couple dozen of Shuler's colleagues in the moderate Blue Dog Coalition could vote....
[A]s the closed-door session dragged on, the soon-to-be-minority lawmakers grew restless. Rep. Barney Frank (Mass.), taking a break from the proceedings, told reporters that his colleagues were delayed because "they're having trouble spelling 'Murkowski' "...
LOL.
The face of the Democratic Party puts on a brave face:
"They know her will! Most important, they know her heart! And that was what was felt today: the heartfelt feeling of this caucus behind this great leader!"
I love that quote, from Rep. John Larson. Will, I mean HEART. Heart! Heart! Heart! That's so deeply symbolic of everything the House Democrats have been up to these last few years.
“The mortgage interest deduction is one of the pillars of our national housing policy,” said Michael D. Berman, chairman of the Mortgage Bankers Association. “Limiting its use will have negative repercussions for consumers and home values up and down the housing chain.”...
But:
[O]nly those in the top third of wage earners even itemized their deductions, meaning that two-thirds of taxpayers weren’t eligible for the break.
“No one can make a serious intellectual argument in favor of the mortgage interest deduction,” [said Calvin Johnson, a tax professor at the University of Texas]. “Why should the government subsidize homeowners rather than renters? The only thing it’s good for is middle-class votes.”
Then why did "House Speaker Nancy Pelosi blast[] the commission’s suggestions, saying it would force middle-class homeowners to subsidize tax breaks for the wealthy"? I guess there are a lot of "middle class" people in the top third of taxpayers.
It's a complex policy question, and since there are other, offsetting tax breaks, it's hard to see who will be hurt the most. But generally, isn't it fairer to have lower tax rates than a bunch of deductions? With deductions, they only help if they're more than the standard deduction and if you do the thing the government has decided to favor.
Wouldn't it be better if you made housing decisions — rent or buy, big or small — without the government adding weight to one side? But if you've already bought a house, and the government's encouragement factored into your decision, you might feel cheated if they take that deduction away. Of course, the government always had the power to take the deduction away, and there's always the argument that you should have factored that in when you made your decision.
But that argument is going to piss people off unless they can remain calm long enough to see that a lowering of the tax rates more than offsets the bottom-line value of their deduction. But is that true? Does anyone know?
"[Sorensen] gave voice to America's historic aspiration for greatness and achievement. He believed in an America that was 'second to none,' and that dared to dream of doing big and important things."
Asks Pelosi, going all conspiracy theory. It just can't be that people — and it's the vast majority of Americans! — actually read/hear news reports and commentary and arrive at opinions.
The fine print differs from the larger political message. If a company sells insurance, it will have to cover pre-existing conditions for children covered by the policy. But it does not have to sell to somebody with a pre-existing condition. And the insurer could increase premiums to cover the additional cost.
If they screwed up something that important, what else did they screw up? Or do you think they deliberately gave the insurance companies that loophole, in which case, the question is what other surprises are tucked away in the 1000s of pages of fine print?
ADDED: This suggests an answer to mystery — discussed yesterday — of why the insurance companies didn't barrage us with "Harry and Louise"-type ads this time. They lobbied behind the scenes and got the language they wanted in the bill. Who put that language in? Who wrote the statute? We know the members of Congress who voted for it probably didn't even read much of it. They went on assurances and assertions about what was in it. And there was that outrageous idea — said with a straight-face by Nancy Pelosi — that they had to pass the bill to find out what's in it.
Now, maybe the idea was to set up the insurance companies. They'd read the text and see they could do something and shock the people by saying no to the extremely sympathetic people who have sick children and who were so trusting and happy when they saw the bill pass.
Whether that was planned or not, it is the spin now. From the first link, above:
Congressional Democrats were furious when they learned that some insurers disagreed with their interpretation of the law.
“The concept that insurance companies would even seek to deny children coverage exemplifies why we fought for this reform,” said Representative Henry A. Waxman, Democrat of California and chairman of the Energy and Commerce Committee.
Senator John D. Rockefeller IV, Democrat of West Virginia and chairman of the Senate commerce committee, said: “The ink has not yet dried on the health care reform bill, and already some deplorable health insurance companies are trying to duck away from covering children with pre-existing conditions. This is outrageous.”
Oh! Bad corporations! Evil, greedy, selfish corporations! We'll hear that old refrain once again, with melodramatic new feeling. What a great opportunity to soften everyone up for the next big reform, when the government takes over everything. Down with the child-killing insurance companies!
I think she's going to come out of all of this very well. Here's my salute to her:
In the comments to the "Stump Nightclub" open thread last night, kentuckyliz prodded our resident animator Chip Ahoy: "photoshop this pic with a teabag dangling down into her mouth. Or clip her out and paste her onto the background for The Scream." She meant this picture:
Not my stump picture:
And Chip said: "Gnarly root Medusa tea-bag Pelosi but nobody is allowed to look at it except for kentuckyliz and Rialby. And now I must go and pray to repent for God told me he's going to totally kick my ass."
Oh, lord! That's so wrong and so right. But that's another kind of salute to the lady who has claimed her place in American history. There was a time when we pulled our punches when a woman was involved. I say Chip's GIF is a landmark in the journey toward equality for women.
1. The Scott Brown victory shook up the White House, and Rahm Emanuel proposed switching to a more modest reform, a "skinny bill." "Mr. Obama seemed open to the idea.... Ms. Pelosi scoffed. 'Kiddie care,' she called [it] derisively, in private."
2. Obama believes that health care is "what his presidency is about" (according to Tom Daschle). (Let me observe that this is not the way he presented himself during the campaign)
3. Nancy Pelosi and Barack Obama don't seem to get along too well. On February 4th, they had a conversation in which one of the lines, spoken by Obama, was: “I’m not a stupid man.”
4. "Many Democrats say [Pelosi's] upbeat, unflappable attitude buoyed them through the darkest days after Massachusetts. But faced with a member she considered intransigent, she could be 'scary tough,' as one person involved in her strategy sessions said. She would stand up, her high heels and imperiousness exaggerating her height, and talk sternly."
