Thursday, April 5, 2012

Interesting Comment; Creeping Normalicy

I was watching the Daily Show, and they had on Tom Goldstein of SCOTUSblog. In addition to being a very intelligent person, and having a very interesting discussion with John Stewart regarding the Supreme Court and current events, he had another choice comment which struck me (you can watch the interview here if you want). The point that struck me was when John Stewart made the observation that it's the Supreme Court's job to uphold the Constitution, and Tom slightly corrected him, reminding him that it's the job of all branches of government to uphold the Constitution, and the Supreme Court just plays one role in that process.

Think about that for a moment. It's the President's job and responsibility to uphold and respect the Constitution; it's in the oath of office. It's also Congress' job and responsibility to uphold and respect the Constitution; it's in their oath of office too. Yet, it seems that often gets overlooked, of not ignored entirely. As a poignant example, just the previous day President Obama had given a speech where he pre-admonished the Supreme Court for performing their Constitutional duty. Moreover, I don't think most people (at least in his own party) even thought too much of it; it was a calculated political move to discredit the Supreme Court in case they strike Obamacare, but the fact that it was an implicit attack on the structure and powers of branches of government (and hence the Constitution) didn't really even register with people, even those who found it distasteful.

Of course, it certainly not the first time in recent memory that a President or Congress has openly defied the Constitution. You don't even need to focus solely on Obama's dismal record of staying within the bounds of power granted under the Constitution: Bush gave us CIA domestic operations and indefinite detainment. Obama has certainly pushed the boundaries with undeclared wars, sanctioned assassinations of Americans, warrant-less surveillance, the individual mandate, etc., but ignoring or subverting the Constitution has become standard practice in the executive branch.

There's a phrase "creeping normalcy". It means when something, usually objectionable, is brought about slowly or gradually, people are more likely to accept it as "normal". Government is full of examples of creeping normalcy, from the taxation, to debt, to government size, government power, police abuses, corruption, etc. You could be forgiven for thinking it's not the President's job to defend, or even respect, the boundaries of the Constitution, based on the creeping normalcy of expansive executive power in the US. That is, until you realize that that's not right at all!

All Presidents, and all members of Congress, swear an oath to uphold and defend the Constitution. Perhaps it's time we find some people for those positions who will actually do so, and hold the people who do not accountable for their abuses.


  1. I agree completely about the exec branch incrementally taking more and more power. I like President Obama having more power, but I don't trust that power in the next person's hands, so we should all agree to follow the Constitution. The President shouldn't be able to enter a war or target US citizens for assassination.

    The thing about the healthcare overhaul (ACA) violating the Constitution is bogus IMHO. It's legitimate to criticize it, but I reject the idea that a law requiring people to purchase health insurance is unconstitutional. We already have tacit insurance that responsible people pay for. We should admit it and make irresponsible people pay for their insurance, unless we're going to let them die if they sick. We won't do that. We'll treat them. They shouldn't get a free ride. They should have to purchase insurance or set aside funds for their care. Republicans should support that notion. The attacks on the constitutionality of ACA are bogus.

  2. I disagree (that the ACA is obviously Constitutional), and I'll state the point raised by one of the Justices during the oral arguments (Alito, I think). In response to the argument that since the government already obligates itself to pay for medical care, and thus the ACA simply shifts that cost to the people, the Justice noted that the government could simply not obligate themselves. Implicit in the statement is the principle: just because the government paints itself into a fiscally unsustainable corner, doesn't mean they get to violate the Constitution to "fix" it (or, in this case, in reality make it worse).

    It's important, in my opinion, not to confuse "that's a good idea" with "that's allowed under the Constitution". Many people disagree on whether Obamacare is a good idea, but that's not the same argument as whether or not it's Constitutionally valid. The latter hinges solely on if the government can force arbitrary sets of people to purchase arbitrary things at explicit costs from other arbitrary sets of people, under a combination and legal contortion of taxation authority and the commerce clause. If so, then the individual mandate of Obamacare is within the power of the government, as is arbitrary and limitless selective wealth confiscation by extension. If not, then the individual mandate is deemed beyond the power vested in the [federal] government by the Constitution. It's really that simple.

    Respectfully, I think your position in the first paragraph contradicts your position in the second paragraph directly. I happen to agree with the former, and wonder how you could possibly hold that view while simultaneously not wanting the Supreme Court to strike down the huge power-grab-expansion that is Obamacare. There are many, many better ways to evoke positive changes to the health care system than this horrible (in virtually every aspect) legislation.

  3. I'll agree with the Constitutionality claim once there's a system in place to get people who can't afford their medical treatment out of the way so they die of their medical problems at home or somewhere else and not create a blight for society. The system would also have to encourage all markets to have providers that don't write off large amounts of treatment to be paid indirectly by responsible people.

    Until we do that, it's law in theory vs. law in action. In theory, the gov't isn't directly making responsible people pay for the irresponsible people. But in action that's exactly what happens, and gov't operates in that environment.

    What I'm saying goes beyond Medicare and similar programs. I'm talking about people who don't pay their copays under Medicare or other insurance, or simply have no insurance and no money to pay. Right now the responsible people of the world pay for these people. All the mandate does is admit this and ask people to be responsible for their own expenses.

    At least the criticism in which Republicans don't want to tax the rich to offset the increased insurance costs associated with some of the requirements under ACA makes sense. They think they shouldn't have to pay someone else's way. We are all of us already paying the treatment when the uninsured turn up at emergency rooms. It makes no sense they don't want to require these people to pay for their own care.

  4. Gosh, I disagree with so many things there... but I think it all can be distilled down to a simple fundamental question. Specifically, the governing question is: can the government ignore the Constitution when it feels that doing so is in the best interests of the people?

    I think you would contend that the government is trying to do what it thinks is in the people's best interests, and although I might disagree, it's immaterial to the fundamental question. The Constitutional argument is also not about who "should" pay, or making the system "fair"; it's about what the government is allowed to do. It also may be true that it's law in theory, since the government has been operating outside its legal mandate for so long that people hardly notice any more (as my title alludes to).

    However, all of that doesn't alter the fundamental question, upon which we apparently have a disagreement. I strongly believe that the government should be constrained by the Constitutional limits of its power, regardless of whatever argument politicians are making as to why it needs to have more power, or how it benefits us to allow the government to control every aspect of our lives, or how what they are doing is the de-facto normal anyway. The very fact that there is substantial disagreement among Americans on that fundamental point speaks more than I possibly could about how grave the situation has become in the United States of America.

  5. I'm not saying the gov't can disregard the Constitution based on past precedent. I am not arguing "gov't already does Medicare/Medicaid. ACA is similar and therefore Constitutional."

    I'm saying Americans who use healthcare services already indirectly pay for people who have no money or insurance. When the poor show up at the ER, the hospital treats them. The hospital stays solvent b/c there's a high margin on services sold to paying customers. If they didn't treat the poor, competitors will lower margins could undercut them. But from a practical standpoint, hospitals don't turn away the poor when they're in immediate need.

    Therefore, if the gov't mandates these people buy heath insurance, it's a mere technicality. Yes, technically gov't is forcing someone to make a purchase. But if I wanted to use hospital services before ACA, I was "forced" to pay for these people's care in the form of higher margins.

    So I'll grant on a legal technicality the gov't's actively compelling people to buy insurance is not legally the same as the pre-ACA situation. But the practical fact is exactly the same: We had partially socialized medicine when hospitals write off the poor's and uninsured's bills. Now we admit it and actually make formally buy insurance for themselves instead of having you and me provide them informal insurance.

    ACA's critics don't like the fact that ACA subsides insurance for the poor. They don't like ACA's limiting the terms of insurance contracts people may choose to enter. The Constitutional argument about being forced to make a purchase, however, is a lame technicality. Nothing changed in that regard. In this one regard, Congress admitted the condition that existed prior to ACA and took action to manage that condition.

  6. All that may be true, but it is all based on a false-premise: the idea that the hospital is "required" to provide services for free. It's only the government which mandates this, else the hospitals (as businesses) would turn away people without the ability to pay for their services. That's what Alito? was clarifying: the government created the situation where people implicitly subsidize those services through higher rates. Moral quandaries aside, the government could dispense with that forced-subsidization by simply eliminating the requirement that hospitals treat people who can't pay; as I said, the continued existence of such should not enable ignoring the Constitution (in my opinion).

    I don't like the ACA (and can we call it Obamacare... that term is far more accurate and applicable than "affordable care", which is an absurd label for the law). I don't like that it makes health care more expense for everyone, and significantly more expensive for those responsible enough to be actually paying for it. I don't like that it deepens the reliance on insurance companies and plans. I don't like the significant additional power it grants to the government, and in particular the DHHS and the IRS. I don't like that it creates a massive new unfunded entitlement program, on top of the current programs which are growing out-of-control and threatening to collapse the country's economic system. I don't like how the supporters of Obamacare lied, repeatedly, blatantly, and very intentionally, about the costs and effects.

    All of that, however, is an aside to the fact that Obamacare is also clearly unconstitutional, and the government passed it anyway. It may seem like a small point in the creeping normalcy of government ignoring the law and trampling on the rights of its people, but that's my entire point: if shredding the Constitution slowly is nothing more than a "legal technicality", the people have already conceded defeat to tyranny.

  7. You're totally right about creeping executive power overall, although PPACA doesn't stand out as something new; hence the creeping normalcy. Ordering the killing of a US citizen suspected of a crime without a trial stands out way more.

    It seems like there's no way to stop each president from taking a little more power. They use special circumstances to justify it, but they made the Constitution for special circumstances. When nothing extraordinary is happening, it's easy to stick to principles. You need to follow the Constitution esp when something extraordinary happens. The extraordinary things in recent times really aren't even that extraordinary: expensive healthcare technologies save lives for those who can afford them; lowlife murders get lucky and kill thousands on a single day; a boom and bust cycle threatens bank solvency. This is normal. Wait till something really extraordinary happens. We'll really have to struggle to keep the Constitution.