Friday, June 26, 2015

Three Watershed Moments, One Week


Let's cut to the chase. This was a bad week for conservatives. First, the Confederate flag, the symbol of slavery and oppression for millions of African Americans, is at long last starting to come down in several southern states; second, the Supreme Court upheld the tax subsidies in states that didn't set up their own exchanges, thus preserving Obamacare; and lastly, the Supreme Court ruled that same-sex marriage is a constitutional right, throwing out all state-imposed bans against it.

Where is a racist, myopic homophobe to go these days? Let's break down each of these historic moments in the order of how they happened.

The Confederate flag. All I can say is it's about time this blight on the nation fell. Flying this flag is no different than raising a swastika banner in the middle of Jerusalem. Not only is it a vile and painful reminder of the subjugation of an entire race of people, it glorified a traitorous revolt against the United States that had to be brutally put down at a terrible cost. The Civil War stands as this nation's costliest and bloodiest war, and for the South to continue its romanticizing of this symbol was and is an abomination. But, more importantly, it's an affront to what the country supposedly stands for and was founded on.

But encouraged though I am that this flag's status as a symbol is slowly coming to an end, I remain skeptical that this will lead to any real breakthrough in the thinking that permeates much of the South. The underlying problem in this region goes much deeper than a mere flag. Until the attitudes of the majority of the population begin to change, I fear that nothing substantive will come of this. For instance, when these states abandon their voter suppression laws and embrace the reality of a diverse and multi-ethnic culture, then, and only then, will I start to believe that the South is finally ready to join the 21st century.  

King v. Burwell. The surprise here wasn't the what - I had a hunch it would be a 6-3 victory for the Administration - but rather the how. In his majority opinion Chief Justice John Roberts not only upheld the tax subsidies in states that elected not to set up their own exchanges, he took off the table the last vestige of hope conservatives might've had to reverse this outcome: administrative interpretation.

Roberts basically wrote that the law was unambiguous in its language. To put it in layman's terms, the statute always intended for everyone to be eligible for tax subsidies, regardless of whether they got them through a state-run or federally-run exchange. Any unbiased reading of the law would arrive at the same conclusion.

What the ruling ostensibly does is bar a potential future Republican president from reinterpreting what the statute means and directing the I.R.S. to deny the subsidies. Here, Roberts is quite clear:

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them." That's the legal equivalent of a bitch slap, folks.

While I don't for a moment believe we are done hearing from the wingnuts on the Right on this issue, for now at least both the Administration and those of us who aren't unhinged can breath a sigh of relief. Obamacare dodged yet another bullet from its foes and, thanks once again to Roberts, it lives to fight another day.

Gay Marriage. To be honest, I wasn't nearly as optimistic about this one as I was with King. Even with Justice Kennedy's past support for gay rights, I didn't think the Court would have the stomach to do the right thing on such a volatile subject. Well, bravo to Kennedy for stepping up to the plate and casting the correct and deciding vote. Good for him and good for America.

This isn't just a triumph for the gay community; it's a victory for freedom everywhere. If these words of Jesus - "what you do for the least of these, you did for me" - have any meaning, then certainly those who have suffered humiliating insults and discrimination at the hands of a majority of Americans who could never walk in their sandals serve as a textbook example.

Now they can lift up their heads with pride and live the life they were meant to without having to hide in the closet. They can marry their partners and enjoy all the legal benefits that go along with that marriage. Perhaps of all the landmark decisions that have come down from the Supreme Court, this is the most meaningful, because it acknowledges a staggering reality that can no longer be denied, either morally and, now, legally: That we are all God's children and no one is above another.

Some will denounce this decision as judicial activism. Let them. Their words will fall into the dump heap of history. The fact is we are a more perfect union today because of this decision than we were before it and that is a good thing.

So there you have it. Three watershed moments in one week. The first from a tragedy, the second a concession to common sense, and the third a victory for human rights. Rarely do we have a week like this. Let's take a minute to enjoy it while it lasts.

5 comments:

Anonymous said...

Thanks for reminding us to take the time to really enjoy this rare day in June!

Prof. Walter Jameson said...


Sir:

Rare is the day that I find myself agreeing with Justice Scalia, but in the matter of King v. Burwell, I most certainly do. At the very least, intellectual honesty demands it. This is simply a very bad - and badly written - law. It's NOT the function of the Supreme Court to save badly written laws. I don't want to ramble on at length about this, so I'll just keep my remarks to the points you've raised.

You stated: "In his majority opinion Chief Justice John Roberts not only upheld the tax subsidies in states that elected not to set up their own exchanges, he took off the table the last vestige of hope conservatives might've had to reverse this outcome: administrative interpretation."

The last vestige? Far from it. This is not Obergefell v. Hodges where the court found a fundamental Constitutional right. This is an interpretation by the court of a statute that allows it (the statute) to pass Constitutional muster and remain a law. It is not unlike what the court did in 2012. The Supreme Court basically rewrote this thing. Scalia is right; the law should be called "The SCOTUS Affordable Care Act." In any case, there is nothing in this ruling that would prevent a future conservative Congress, along with a future conservative president, from modifying this act in whole or in part ... or getting rid of it entirely. There is NO fundamental right here.

You stated: "Roberts basically wrote that the law was unambiguous in its language. To put it in layman's terms, the statute always intended for everyone to be eligible for tax subsidies, regardless of whether they got them through a state-run or federally-run exchange. Any unbiased reading of the law would arrive at the same conclusion."

How you're able to write this with a straight face is beyond my ability to even guess. My calendar doesn't say it's April 1st, so I assume you're not joking. The intent of the law was always to get the states to set up their own exchanges. The incentive was Federal subsidies. The planners behind the act believed that these subsidies would make it a "no-brainer" situation for the states to accept. How do I know this? MIT economics Professor Jonathan Gruber, one of the architects of the ACA, said so. Well, he (and they) were wrong. You see, THIS is an example of unambiguous language: The Federal government will ensure that subsidies are available to people buying insurance on an exchange established by the state ... OR THE FEDERAL GOVERNMENT. Why wasn't that simple, clarifying phrase put in (IN FIVE DIFFERENT SPOTS throughout the ACA)? It wasn't put in because it was never the G-damned intent! Do you understand that?!

You stated: "What the ruling ostensibly does is bar a potential future Republican president from reinterpreting what the statute means and directing the I.R.S. to deny the subsidies."

So what? They can get rid of the entire thing and pass their own healthcare act. And that quote from Chief Justice Roberts is nothing but meaningless gibberish.

Look, you can gloat all you want about this law being upheld, but know this and know it well: One day a strongly conservative court will be seated and will start playing fast and loose with statutory interpretation to save a badly written law with which you strongly disagree. What will you write then? How will you distinguish yourself from being just another partisan hack writer not unlike those found on the pages of The National Review or The Nation? How will you maintain intellectual honesty going forward?

If you disagree with anything that I've written, please feel free to respond. You're not going to turn into a pumpkin, or anything, if you engage your readership once in a while. After all, writers within the pages of the best magazines and journals do it all the time. The dilettantes never do.

Thank you for the opportunity to respond.

Peter Fegan said...

Wow, well that was a mouth full. How to respond?

First off, to the issue of badly written laws. I'm certain that there are quite a few of them out there. And in almost all of those case the Supreme Court never utters a peep. The only reason it got the chance to put in its two cents was because of a frivolous lawsuit that didn't even have standing. You conveniently left that part out. Must've slipped your mind.

Two: Regarding the issue of exchanges set up by the state and NOT the Federal government, there are references all throughout the statute about the federal government setting up such exchanges in the event a state chose not to. No one ever expected when the law was written that a state would elect not to do so. Gruber or no Gruber, it was clearly the legislature's intent that states would do the right thing. To assume anything else would be to grant the point of Kennedy that the federal government was coercing the states to comply with a law and that would be against the 10th amendment.

Third, pass their own healthcare act? Have you been drinking? I believe the solicitor for the administration said it best. "This congress?"

Fourth: "One day a strongly conservative court will be seated and will start playing fast and loose with statutory interpretation to save a badly written law with which you strongly disagree." This Court has been by far the most activist in memory, or perhaps you hadn't heard of Bush v. Gore or Citizens United or the gutting of the Voting Rights Act. Really, you're going with that? That this court could become even more conservative than it already is? Christ, you sound like Levin. The only "jurists" who thought the law should be scrapped were the Three Stooges. I give Roberts and Kennedy - who are hardly swing votes - credit for seeing through this canard and properly disposing of it.

And lastly, partisan hack writer? If you had bothered to spend one tenth the time reading ALL of my blog posts that you spent typing this gibberish, you would've found several facts: 1. I have engaged my readers - such as they are - on many occasions; 2. Unlike most progressives, I don't kowtow to party lines. I give credit where credit is due. In my last post, I was complimentary to Mitt Romney when he said South Carolina should take down the confederate flag. Perhaps you should read that one.

I have googled your name and the only reference I find to a Prof Walter Jameson is from a Twilight Zone episode, which might explain some things. I rarely take issue with someone who bothers to post a comment on my blog, since there are so few to begin with. But to be quite blunt, you went WAY over the line here. If this is how you intend to comment going forward, perhaps it would be best if you pollenate on someone else's crop field.

Prof. Walter Jameson said...


Sir:

Good! Glad to read your defense of what you've written.

Your first paragraph in response needs a bit more explanation. A frivolous lawsuit that didn't have standing? How does a lawsuit have any standing? Typically, *parties* to a lawsuit are determined to have standing (or not). And the Supreme Court doesn't take up frivolous matters. Judicial activism, however, is a whole different thing. This case was (statutory) judicial activism of a type that you happen to like, that's all. That goes to the point I made about intellectual honesty.

Yes, there may be such references throughout the statute regarding the Federal exchanges, but that is not the issue. According to the ACA's chief architect, the incentive for the states to set up their own exchanges was the Federal subsidy. The clear implication was for the states to handle this thing entirely. The default was to be the Federal exchanges. But there would be a penalty for this. And that penalty would be no Federal subsidy. Not only is this the way it was supposed to be, it's also the most logical interpretation. And this notion that you bring up about clear legislative intent is ludicrous on its face. Most of these "representatives" - including the Speaker of the House - didn't even read the damn bill, let alone craft any part of it, before approving it. I guess that must have slipped YOUR mind. So, yeah, what Professor Gruber says about the ACA carries a whole lot of weight. After all, he basically put the thing together.

To your third point: Wholly irrelevant. That is our Constitutional form of government, and that's the way things work. So be it. The Supreme Court doesn't make the law.

To your fourth point: Those cases involved Constitutional *rights*. Activism in that arena is going to be a function of political philosophy. Roe v. Wade was one such case. That's just the way it is, whether you agree or disagree with it. Elections have consequences. This particular case, however, was a matter of statutory interpretation of an act that was very badly written. It is not the function of the Supreme Court to save badly written laws. And the reason it's not their function is that they run the very real risk of making their own laws. It (the ACA) should've been sent back and reworked through the legislative process - yes, to THIS congress. Whether you like it or not, that is the way our government is supposed to function.

Finally, I didn't call you a partisan hack writer. I merely suggested - maybe not all too well - that you run the risk of becoming one by using the reasoning that you did in support of the King v. Burwell decision. That's just one person's opinion and nothing more than that.

To your final point, this is your blog and I respect that. I don't believe my comments went over the line at all and will make no apologies for them. But that's irrelevant because you feel that they did cross the line. If you don't want me to post any additional comments here, I will honor that request.

Thank you for the opportunity to respond.

Polyman Comith said...

That's the spirit!