Tag Archives: challenges

Taking Stock And Looking Ahead

Tonight we end a year, and tomorrow we begin a new one.

In so many ways, large and small, the human family finds itself at a turning point. We are experiencing profound and accelerating changes to the cultural, economic and technological environments we inhabit, and those changes are both challenging and disorienting. (And dangerous. If unaddressed, climate change could make the planet uninhabitable.)

This would seem to be a particularly unfortunate time to have a witless buffoon in the Oval Office being protected by a feckless and delusional Republican Party.

On the other hand, as I suggested a couple of days ago, Trump’s election may turn out to be a fortuitous wake-up call, a warning that our country’s moral and legal infrastructure is in even greater disrepair than our roads and bridges, and that we need to fix what’s broken sooner rather than later.

A recent article from the Guardian considered America’s situation “two years in” to this surreal administration.

For sure, Trump is testing his infamous January 2016 claim– “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters” – to destruction.

True, there has been no new war, no major terrorist attack, no economic crash – at least not yet – such is the soft bigotry of low expectations. There is also a school of thought that this presidency was necessary, that the rise of a narcissistic authoritarian has brought about a moment of reckoning, forcing white Americans to confront a racism many had dismissed as ambient noise and forcing everyone to confront a broken politics.

A number of the political observers quoted in the article made an important point: even if Trump fails to serve out the rest of his term, or is soundly defeated in 2020,  we will be unable to simply pick up from where we were before 2016. We will have to deal with the systemic failures and erosion of democratic and ethical norms that gave rise not just to Trump, but to the contemporary GOP.

And yet there is a striking paradox. Over the past two years, Trump has also caused a democratic renaissance. The first Women’s March on Washington the day after his inauguration was probably the biggest single-day demonstration in recorded US history, with an estimated 725,000 people. In November 2018, 49% of the voter-eligible population showed up at the polls, the highest midterm turnout seen since 1914. Activists, authors, journalists and satirists have thrivedin an age when politics suddenly matters again. The complacent myth of a post-racial country, which some espoused after Obama’s election, has been exploded, forcing some long-overdue conversations.

The over-riding question, as we head into 2019, is whether We The People will sustain this activism in a productive and positive way; whether American citizens will work together to repair the damage and reclaim our national ideals, or whether we will retreat into our various tribes and direct our hostilities to those who should be our comrades-in-arms.

We have a lot of work to do. Here’s hoping 2019 finds us living up to the challenges.

Happy New Year….


I Don’t Like This Law So It Must Be Unconstitutional

Yesterday, I spoke to a high school government class, filled with bright high school seniors who have thus far escaped any meaningful encounter with the U.S. Constitution.It came as a surprise to most of them, for example, that the Bill of Rights applies only against government. So we talked a good deal about the limits on government action, and what our government can and cannot require of us.

One of the students asked about the constitutionality of the individual mandate provision of the new health-care reform law.

Now, I’m not a fan of the new law; I would have much preferred a simple “Medicare for All” approach.  But there are a lot of laws I dislike, and a lot that I believe represent poor policy choices. That doesn’t make those laws unconstitutional.

There is absolutely no doubt that government could constitutionally establish “socialized” medicine–whether along the lines of Medicare for All, or another single-payer system funded out of tax revenues. The Affordable Care Act works with private insurance companies–and politically, that’s undoubtedly the only way it could be passed. But in order for the new system to work, everyone must purchase insurance. Opponents claim the government cannot force people to do so.

The bill offers subsidies to people who cannot afford insurance. It exempts people for whom the purchase of insurance would be a financial hardship. It grants other exemptions for American Indians, for those with religious objections, undocumented immigrants, incarcerated individuals, and those living below the poverty level. The rest of us must buy.

Two separate constitutional provisions allow the government to require this: the taxing power and the commerce clause.

The taxing power argument is straightforward: we either buy insurance or we pay a tax. The Commerce Clause gives Congress considerable latitude to craft “rational” means to achieve “legitimate” purposes. Opponents argue that a decision not to buy insurance is “inactivity” and that “inactivity” cannot be taxed or regulated. But as constitutional scholars have pointed out, those who choose to go without insurance–insurance that the government is making affordable for them, even subsidizing for them–are in fact doing something. They are shifting costs to everyone else. As Yale Law Professor Jack Balkin has written, they are making a decision to self-insure. That decision “games” the system and makes it more expensive for everyone else.

The individual mandate is not functionally different from our obligation to pay Social Security and Medicare taxes, or the requirement to carry auto insurance.

At the end of the day, the argument against the mandate–and the Affordable Care Act–is simple, if uninformed: I don’t like this law, therefore it is unconstitutional.