Mom, Spinach, And The Supreme Court

                           

“Put on a sweater. I'm cold.”

I bet your mother said that to you. And she insisted that you eat your spinach because Popeye and other trained nutritionists said it was good for you.ⁱ And besides, there were children starving in Europe.ⁱⁱ That's what I was told, and I did as I was told, but I never really understood the ideas behind these pronouncements. I knew it was “for [my] own good,” but the details were a little hazy. And she also wanted me to get a good education. She wanted me to do better than herⁱⁱⁱ and my father.

Now I know it was a little like an insurance policy. If I paid the price^iv I might get the benefit. Might. There were no guarantees. It was gambling. Like the stock market. Or the lottery.

If you're going to gamble, though, the lottery's the way to go. The cost is low and the payoff could be humongous.^v But the chance of winning is infinitesimal.^vi Wishing won't make it so.^vii

Well, maybe it will. The issue may have more to do with intent and wish than with fact. At least that seems to be the Supreme Court's stand, and since they make the laws we have to take their decisions seriously.

Last June, when it rendered a judgment on the “Affordable Care Act,”^viii the Court ruled that, for the most part, the legislation passed muster.^ix Specifically the decision was made that the “individual mandate” was defensible, even if not the way Congress wanted the law. But to do so – to make the act Constitutional – it was necessary to “interpret” the law in a way contradictory to what Congress and the President expressly wanted. The Court decides what's legal, though, so they can do that, and substitute whatever suits their philosophy.^x

In this instance the bill was constructed in a manner which was expressly intended not to raise taxes. The individual mandate would result from Congress’s commerce clause powers^xi and the act contained a requirement that those who elected not to have health insurance, as was their right, would be subject to a “penalty” – a “shared responsibility payment.” But there would be no tax. This was specifically stated because raising taxes was viewed as unwise politically. According to the Huffington Post, “the actual text of the bill^xii uses the word 'penalty' – not 'tax.' Even Obama, while the law was still being debated in Congress, insisted in a September 2009 interview with ABC's George Stephanopoulos that his health care overhaul was 'absolutely not [emphasis added] a tax increase.'"^xiii But, as Derek Thompson, a senior editor of the Atlantic, noted in the publication's June 28, 2012 edition, “five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose^xiv using its taxing power. That is all that matters.” Consequently, in terms of legislation, the will of Congress – the Legislative Branch of government – is not relevant. Nor is that of the President. Congress could have legislated a tax if they wanted to, so even if they didn't want to do that, the Supreme Court has decided that what they view as Congress's intent trumps what it actually said and did.^xv Wishing can make it so. Congress wanted universal insurance and they could have legislated it. Therefore it's legal. It's also good for the individuals involved – whether they think so or not.

That was mom's view. She honestly believed that the sweater and the spinach were good for me and the children in Europe. They were a good insurance policy. Whether what she said made any sense, she could have made a logical case for her decision if she had chosen to. After all, she had the right to do so.^xvi And “That is all that matters.”

Which brings me to the lottery and my fortune. I'm sure the Supreme Court will support my contention that since I could have chosen the winning numbers – I was legally entitled to do so – I should be awarded all the prizes to date. My intent and my wish were to win. Wishing makes it so. Consequently I claim the $550 or so million up in the next^xvii “Power Ball” lottery. Even if I lack the luck to pick the right numbers, I'm certainly permitted to do so and “[t]hat is all that matters.”^xviii The Fourteenth Amendment, and all that's said about equal protection, make my claim as valid as those who favored the Affordable Care Act. At least according to the precedent set in deciding its validity. The Court will certainly see that my intent was to win, so even if I didn't choose the right numbers, I certainly could have chosen them, so it will be hard for the Justices to deny me the prizes without retracting their decision on Obamacare. They may not want to, but they've already decided that wishing, intent, and legal ability are what really count.

Oh. You have to buy a ticket? Well that shouldn't affect anything. I could have bought one.

Thanks mom. You were right about the sweater and the education. (I'm less sure about the spinach.) And some time soon I'll be able to buy a very expensive sweater. And one for you, too. There's no reason you should be cold.

Next episode: “Thank You Eve” – The Devil made me do it.

i      Spinach was believed to be very high in iron. As it turns out, the original calculations may not be accurate. In addition, the high oxalic acid content limits the absorption of iron. There are, however, high levels of vitamin A and antioxidants present, though the significance of their addition to a well rounded diet is not clear.

ii      Of course there were children starving elsewhere as well, but our focus was on the continent that had just gone through a world war, and we were Eurocentric – even though the word had not yet been coined. But we weren't self-conscious, nor were we guilt-ridden about our focus. Now you're more likely to hear a reference to somewhere in the “Third World” as we strive to prove that we are diverse, multicultural, sensitive, and inclusionary, in keeping with the modern vogue.

iii      Or is it “she?” I always have trouble with that construction.

iv      In these instances the price was directed at modifying my behavior (after all, how likely was it that my spinach would actually help the children in Europe, and who wants to get out of bed and go to school anyway – but mom's reassurance made it all worthwhile) rather than any fiscal layout, however to some even this seemed to be a little high in view of the negligible chance that there would be a specific payout. And if there were, we probably wouldn't recognize it.

v      Slang. It's not in my copy of the OED (Second Edition – 1991) but someday will Well not in mine, but in a new edition.

vi     Perhaps not. I think that it's possible to win every time. Legally. In fact, I could be a billionaire. And so could you. But more about that shortly.

vii    This, too, may need reevaluation.

viii   ACA and “Obamacare” are two ways that the more polite among us refer to this program. Others are not so generous, citing issues of individual liberty as the reasons for their concerns about the legislation.

ix    It was decided that the Federal Government could not withdraw existing Medicaid support from states that balked at significantly increasing the number of those eligible to receive this entitlement. Otherwise everything was copacetic.

x     The concepts of “checks and balances” and “separation of powers” no longer apply. The Supreme Court, like mom, is in charge, and there is no appeal from its decisions.

xi     Of course nothing in this clause (Article 1, Section 8, Clause 3 of the Constitution) that deals with this issue or even implies any connection to health care, but the Court has expanded its scope at will. According to Wikipedia, “During the post-1937 era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited.”

xii    I must admit that I never read the bill. It's far too long. In all likelihood, though, it wasn't read by most of the people who voted for it. They simply did what they were told.

xiii  June 26, 2009. Of course Congress's position, and that of the President, were well reported elsewhere as well, so that taxpayers would know that no one was raising their taxes.

xiv    If it wants to.

xv     What makes it a little harder for me to understand, however, is that the Court decided, when ruling on the legality of the individual mandate, that, despite Congress's wishes, which it ignored, this was a tax (intent was not relvant) and the commerce clause didn't apply, but, when dealing with the argument that the case should not then have been in court and decided, because taxes cannot be challenged until they have been paid (as per the Anti-Injunction Act of 1867) – and that has not happened yet – ruled on the case because, according to the Court, the act does not apply in this case since Congress used the word “penalty” instead of “tax,” signaling Congress’s intent that the Anti-Injunction Act should not apply in this case. The Court ignored Congress's wish that it not a tax, but after deciding it was a tax ruled that laws regarding taxes didn't apply to it because Congress didn't want a tax (intent was all that was relevant). I guess I don't understand because I have no legal education and lack the legal sophistication (sophistry?) to appreciate the nuances of the decision.

xvi     Some children's rights advocates might not accept this view. 

xvii    As well as the prizes in all previous lotteries.

xviii   Everyone else is equally entitled to win, so don't tell them my plan. At least not until I collect my fortune. After that I won't care and they can divide it all among themselves.

The Court In Action

                                                                                                 

It's hard for me to determine if the Constitution is the best form of government possible, but it's what we have. I don't presume to be the best interpreter of it. That's not my area of expertise. I'm neither a historian nor a Constitutional scholar.

I can't comment on the validity of the Affordable Health Care Act that was given the green light by the Supreme Court. It's legal. They said so, and since they claimed the prerogative to make such decisions in Marbury v. Madison I have no standing to do question it. I'm not a lawyer and it's not my area of expertise.

But is it better to be healthy or sick? I can offer an informed opinion on that. I'm a doctor so I have the expertise. Even if I weren't, I suspect that I'd opt for good health if given the choice.

But I don't think that is the issue. Congress passed a statute that provided, under the Constitution's Commerce Clause, that everyone would be required to have health insurance or pay a penalty. It would not be a tax. Raising taxes is a dicey political issue and Congress made great efforts to avoid that pitfall.

Not only that, but when arguing for the validity of that law, the Executive Branch of our government emphasized the fact that this was not a tax and that its sanction lay within the Commerce Clause.

The Supreme Court, however, rejected that argument declaring that while it was not Constitutionally valid under that clause, it could still pass muster as a tax, since Congress had the right to pass such a levy.

The President declared victory since the Court left the Act standing, but he stated flatly that it was a penalty, not a tax. He denied the underpinning of the Supreme Court opinion while accepting the decision itself. He denied the appellation of a tax, which is toxic at any time, but even moreso in an election year.

Whether Congress has the power to assess a tax on those without insurance is not the subject of the debate. Clearly Congress did not want to do so. And the Executive didn't want to defend the statute on that basis. And that is a perfectly valid point of view and action, but the Supreme Court wasn't prepared to accept the will of Congress and the view of the President. The Court, which had assumed the responsibility of deciding what the law was, preferred to declare and legitimize what the Justices thought it should be.

One of the main concerns of many Americans is about what they consider “judicial overreach.” There is a view that the courts have usurped legislative power and made decisions regarding legislation based upon their views of societal needs rather than Congress's. Even without training in Constitutional Law, I doubt that this was the intent of the Founding Fathers.

This decision cannot be seen in any other light. Although the Court rejected the wishes both of Congress and the President, the majority found a way to approve the Act. Referring to a power of Congress which it had chosen to reject, the Court allowed the new law to remaining force even as the President rejected the Court's reasoning. The Court had based its view on a right that Congress had not claimed, because it existed – even if Madison meant something different when he wrote it. The majority found a way to achieve the desired goal of universal health care in spite of the other branches of government. It legislated what Congress had not wanted.

It is hard to argue against health and for the denial of care to everyone, but it is also unreasonable to insist that the State knows better than the citizens who created it. If the courts can justify whatever they consider appropriate, whether or not Congress wants to do so, there is no longer any real balance of powers – no checks and balances. The Court claims the right to decide on Constitutionality, but as such, its mandate is to judge the laws that have been passed, not to find a way to pass their own laws and then find them Constitutional. At that point, Congress, and the Executive, which is charged with the responsibility of enforcing the will of Congress, become irrelevant. If Congress acts in a way that the courts find to be wrong, but the goal is one of which the court approves, the judiciary can write its own law, irrespective of the wishes of Congress.

Our health is critical, but so is the health of our country. And it's our country and our Constitution that are the real victims of the Court's therapy.

Giving and Receiving

 

I enjoy giving charity. No. “Enjoy” isn't the right word. Nor is it a matter of noblesse oblige. There is something condescending about such an idea: that we “rich” people have an obligation to help the poor folk. It isn't like that though. I may not be rich but I do recognize some kind of obligation to help others even if I regret the need to do so. But more to the point, I view it as an obligation of everyone, irrespective of his resources. Those who can afford to do so should certainly give more than those less able, but the obligation belongs to us all. It is sad to note that no matter how poorly we are doing, there is always someone who is worse off than we. We are all responsible for others.

Whatever it is though – however it's defined – there is one thing that is essential to me. I am giving freely. At least, the compulsion to give is internal, not deriving from any external source. I give (or I work for a public organization – sometimes “sweat equity” is what is needed most) because I want to – because I feel the need to – not because someone else tells me I must.

But, unfortunately, that's the way it works nowadays. While the government makes allowance for voluntary contributions, and even “helps out” by making many of them tax-deductible, there is a system of allotments from government funds for food, housing, health, and all manner of other benefits for voters, non-voters, constituents and contributors.ⁱ And we have developed a mindset that considers such allotments as the right of the recipient. Because, according to “common knowledge,” we have created poverty – we have made the poor poor – it is our legal obligation to support them. Is charity a test of the giver or an entitlement of the recipient?

The latter is the view of many of our fellows, and certainly of the majority of those receiving aid. They are entitled to support. The government – that is, each of us – has a legal obligation to provide for their needs irrespective of the reason for those needs. So what was once a necessity for survival is now a right. And what was once freely given charity is now tax.ⁱⁱ We resent the forced giving, and the recipient resents us. There is neither willingness on the part of the giver, nor any feeling of gratitude by the recipient.

Perhaps, when giving true charity, seeking gratitude will be viewed as inappropriate and as condescension, but that is not its value. For some, though not all, the recognition that the assistance that they receive stems from good will, not obligation, may provide the impetus to work harder to avoid a future need for more. Certainly there are those who choose poverty as a way of life, and there are those who would not accept charity irrespective of how it is labeled, but they are the minority. We can only hope that those who accept aid will be inspired to find a way to avoid the need for it in the future.

But for those who view aid as an entitlement, there is little impetus to find another way. If what they receive comes by right, then no one can criticize them, and there is no reason to seek any other way of achieving their needs.ⁱⁱⁱ Why should they? After all, they are only getting what is due them.

It is better to give than to receive. Perhaps. It is certainly better to be able to give than to have to receive. So I'm grateful for the ability to help. “Grateful.” That's the word. It's one that can apply both to the giver and receiver. It's definitely better than “resentful.”

Next episode: “Politics As Usual” – You thought there was a difference?

i     It has nothing to do with charity, but contributors and organizations with good lobbyists get a large part of the available government money. Of course they defend their windfalls as investments in the improvement of life for those who need it most.

ii    Feelings of guilt drive the urge to give away tax money. Of course, it's usually someone else's money. And those giving it away are often looking for the votes of the recipients. Or if they're corporations, the politicians are looking for their contributions.

iii   Many people consider this view to be mean and an elitist one. They regard those who question the rationale of throwing money at problems as the real villains, and those who collect these “entitlements” as the victims of a repressive society. Oscar Lewis introduced the term “Culture of Poverty” in 1959 to depict a way of life in which poverty was assumed and accepted, and, in 1965, the term was popularized by Daniel Patrick Moynihan. Perhaps it is time to rethink our entire welfare and entitlement systems so that they will more successfully encourage an end to the “cycle of poverty.”

No Answer

 

I got a call a few days ago from “NRA.” That's what it said on my telephone. I assumed it was the National Rifle Association and the woman at the other end confirmed that. I told her I didn't have a rifle and I hung up. It wasn't my intent to be impolite, but I have no interest in the NRA or in its goals.

The call, however, exemplifies one of the many problems in our “system.” I've listed my telephone on the “Don't Call List,” but now I know that this list is only for telemarketers. Politicians, charities, organizations that claim to have done business with me, and others, are excluded. Since the NRA is a lobbying organization rather than a charity, and I've never done business with it, I can only assume it is one of the other organizations not covered by the regulation. Somewhere buried in the act there must be an exemption for any individual or organization who donates to a Congressman's treasure chest.

That's the way it is with too many of our laws. A bill is a piñata, a Trojan Horse with a fancy name that has been carefully crafted to contain benefits of some kind for one or more special interests while appearing to the voters as a public service designed to protect them. Our new health care bill was well over two thousand pages, and required tens of thousands of pages of additional regulations. It's summarized as providing health care for all. That's a short summary for a bill that's so long, and it's hard to imagine that there isn't something else inside. But, in all likelihood, no one but those who stuffed the horse with goodies has ever examined the contents in detail.ⁱ As they say, “the Devil is in the details.” So there's a lot of room there for Scratch and his many faithful servants. And for the lobbyists as well (assuming they're not already there among his “faithful servants”). A recent edition of my morning paper told of the new finance overhaul bill which, in addition to regulating financial firms, is said to be aimed at job creation. The bill is over twenty-three hundred pages long, so just cutting down the trees, making the paper, typing it out, and distributing the bill certainly required many new jobs,ⁱⁱ even if no one reads the small print. Similarly there are likely to be many new agencies and bureaus (and the jobs that go with them) created by the bill. And, of course, there are probably significant benefits for the organizations that support the bill's writers.

There are also numerous new regulations in it as there are with the health-care bill, however their enforcement should not be assumed. Notwithstanding the Don't Call List, I've still been getting many appeals from telemarketers, but when I complained to my State Attorney General and the FTC, I was told that there wasn't much they could do about it.ⁱⁱⁱ I should just hang up on the callers. I vaguely recall “Just say 'no'” from a previous administration but I didn't know it still existed. Enforcement appears to be a low priority. Once the publicity value of a bill is gone, and once the benefits have been distributed to the donors, there is no need to go further. The nominal justification for the bill is of no concern to those who have voted for it, and the public will be mollified by the next bill, which will be announced to the press this afternoon. Report at eleven.

But we don't require new bills. Especially those whose primary purposes are to win benefits for members of Congress and extend special privileges to their contributors. We need proper enforcement of the ones we already have.

I don't need any more calls from the NRA.

Next episode: “Giving and Receiving” – Charity or “charity”?

i       Not even other legislators who vote for it. Especially if you promise to vote for their bills.

ii      The same is true, of course, of the lengthy health-care bill.

iii     That's funny. The IRS never has problems with its job.