Category: Analysis

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Analysis Domestic Policy

important week for SCOTUS, health law, administration

Nina Totenberg and others reported in NPR’s health blog Sunday that the Supreme Court is very soon to hand down its decision in the controversial case of the Affordable Care Act. Indeed, it appears the decision has been scheduled to be given on Thursday. At issue are four distinct questions. The first was whether the suit, brought by 20 states against the federal government, can even be decided now by the Court since an 1867 law regarding taxes might be prohibitive. It appears to be the case that the justices feel that they can. The second, and most interesting to me and it seems most other people, is whether the so-called “individual mandate” provision to purchase health insurance or be assessed a fine is allowed by Congress’s broad powers to regulate interstate commerce. The third concerns whether a vast expansion of Medicaid mandated by the law is impermissably coercive on the states, who bear the responsibility of that program’s administration. Finally, the fourth is the resulting question of severability: if any part of the law should be found to be unconstitutional, how much of the rest of the law can be permitted to stand?

I wrote much earlier this year, among other things, about how this decision will be both interesting and significant. At first I thought I would wait until the ruling to talk about the case in any detail, but instead I’ll now attempt to predict how the Court will rule on this question and analyze a few other significant rulings handed down this week.

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Analysis Foreign Policy

don’t kill me, bro!

The New York Times dropped a bombshell expose earlier this week when it reported on many details of a ‘Secret Kill List’ that the President heads up. The existence of such a list within the administration isn’t news: the Los Angeles Times reported more than two years ago about a CIA drone hit list when there was talk of putting US citizen Anwar al-Awalki on it. Of course, he was put on that list and was later executed by drone to much fanfare.

What is new information is the personal role that Obama himself takes in deciding who lives and who dies. According to Tuesday’s Times article, “Mr. Obama has placed himself at the helm of a top secret ‘nominations’ process to designate terrorists for kill or capture, of which the capture part has become largely theoretical.”

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2012 Analysis Election History

fresh politicization of gay marriage

The question of whether a pair of homosexual adults ought to be able to enter a federally recognized marriage has been under debate for twenty years or so. Hawaii appears to have forced the issue in the early 90s with the interesting case of Baehr v. Miike. The Hawaii Supreme Court remanded a trial court dismissal of a suit alleging Hawaii’s ban on same-sex marriages was illegal. The Court found in 1993 that, because the ban was discriminatory based on sex, it was subject to “strict scrutiny” and hence the burden of proof that the law was sound rested with the state “by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.” This led to a remarkably childish legislative and judicial back-and-forth which culminated in the People of Hawaii enacting, by a vote greater than two thirds, a constitutional ban in 1998.

At around the same time there had also been federal wrangling over the legal status of homosexuals. Bill Clinton campaigned in 1992 on ending fifty years of refusing to allow gays in the military, which was derailed in part by then-Joint Chiefs Chairman Colin Powell, leaving us with the widely reviled Don’t Ask, Don’t Tell (DADT) policy. In 1996, Congress enacted the dubious Defense of Marriage Act (DOMA), which federally codified marriage as being only between a single heterosexual couple on fears that the US would be forced to recognize Hawaiian gay marriages due to the Full Faith and Credit clause in its Constitution. Many states followed suit in the intervening years; at present, 42 states ban gay marriage, 31 of them through Constitutional provision.

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Analysis Faith Science

contraception, gay marriage, and global warming

In absolute defiance of common sense, the contraception “debate” that I was hesitant to write about — twice — seems to continue, at least by proxy. On leap day, Rush Limbaugh weighed in on that woman who was denied to speak at the House panel ostensibly about birth control. As is usual, Rush Limbaugh had nothing valuable to add to the discussion, but his particular word choice led to controversy and an incredible flight of advertisers from his so-called Excellence In Broadcasting network. His joke of an apology was summarily dismissed and Jon Stewart brilliantly ridiculed the whole mess. It’s so bad that now other right-wing talk radio stars are being targeted for sponsorship withholding.

But while Rush’s particular comments appear to be a lightning rod for focused criticism, the spirit of his remarks forms the cornerstone of conservative opposition to publicly underwritten or otherwise widely accessible birth control. It cannot be that the right protests government spending per se, since it tends as a rule to support robust defense spending, foreign intervention, big oil subsides along with increased and oversight-free drilling, expensive tax cuts for the wealthy, and so on. The BBC has a lovely summary of the major arguments against contraception:

  • Contraception is inherently wrong because it is unnatural, anti-life, and separates sex from reproduction.
  • Contraception leads to negative consequences since it prevents potentially useful individuals from being born, can be used for social engineering or eugenics, and carries health risks.
  • Contraception promotes “immoral behaviour” by encouraging marriage-free sex primarily for pleasure.

Let’s consider these points in turn.

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2012 Analysis Election Speculation

why Ron Paul should win the primary

Let’s face it: no republican will become president in 2013.

That’s quite a bold claim, so allow me to defend it. The contentious republican nomination race continues without an obvious winner emerging as yet. There is still talk of a white knight coming to the rescue at the last minute, and this idea isn’t new: popular New Jersey governor Chris Christie was shamelessly pestered despite emphatic refusal to enter the race last summer, but he’s more likely to join the Romney ticket as VP; Indiana governor Mitch Daniels has been the target of speculation to fill this role, but he has also explicitly declined, and his official GOP response to Obama’s State of the Union speech in January, while popular on the far right, was quite frankly horrible in both content and presentation; even former Florida governor Jeb Bush is getting the eye, but it seems inconceivable that the republicans would risk their shot on a third Bush four years after the second one left office with the lowest approval rating in Gallup history. In short, the white knight scenario is not happening.

So four republicans remain in the presidential primary, and one of them will be named at his party’s convention in August for the general election barring some unlikely brokered convention scenario. But whom?

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Analysis Foreign Policy

the global intelligence files are on the way

Wikileaks announced today that it will be publishing another massive dump of leaked documents that “date from between July 2004 and late December 2011” in the coming weeks. This time, it’s an archive of more than five million internal emails from the “global intelligence” firm Stratfor, founded during the Clinton administration and headquartered in Austin, Texas. Wikipedia says Stratfor is actually short for Strategic Forecasting, Inc, and the obnoxious smartness of the branding is, I think, an insight to the nature of the company. According to their website, Stratfor is a “subscription-based provider of geopolitical analysis” whose goal is “to make the complexity of the world understandable to an intelligent readership, without ideology, agenda or national bias.” Their website main page looks a lot like that of a typical news and analysis organ, complete with a hierarchy of chronological stories and quick links (compare it with BBC News).

This is the same Stratfor that made news last Baby Jesus Day when Anonymous claimed it had hacked the intelligence service’s website and stolen unencrypted passwords and credit card information belonging to its subscribers. Anonymous then used that information to make donations to various charities, and it published the subscriber list, which was reported at the time to include Apple, the Miami Police Department, and the US Air Force. Wikileaks now adds to that partial list “Dow Chemical Co., Lockheed Martin, Northrop Grumman, Raytheon and government agencies, including the US Department of Homeland Security, the US Marines and the US Defense Intelligence Agency.” I find it comforting to know that the same intelligence group on which hugely influential organizations in both the public and private sectors rely didn’t encrypt sensitive information, but it does seem that they had managed to pull the full list from the web (look at this and this, or more accurately, don’t).

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Analysis Foreign Policy

let’s bomb Iran!

The establishment media have been cheerleading for military action against Iran for some time now. In October, the Justice Department announced it was charging two men in connection with a plot to assassinate the Saudi ambassador to the United States. Despite the clear absurdities of this charge — that a clumsy used-car salesman from Texas met with undercover DEA agents posing as members of narcotics cartel to try to hire Mexican hit men to kill the Saudi ambassador in Washington, D.C., all under the direction of the Iranian government through an illegally travelling member of its Quds security force — the scaremongering was off to the races. The day the DOJ announced the charge and arrest of the car salesman at JFK airport, the Wall Street Journal published this op-ed, calling the affair “a sobering wake-up call” and instructing us that this “appalling news needs to be placed in the broader context of Iran’s behavior.”

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Analysis Faith

who are the republicans kidding in the contraception debate?

I wrote last week about the controversy over the administration’s rule that originally mandated Catholic-affiliated institutions provide their employees with insurance that covers contraceptives, which was later revised under a hail of holy bullets to require the insurance companies themselves to provide contraceptives directly to employees of impacted organizations. This compromise seemed so reasonable that I expected the issue to go away quickly. In fact, according to Joan Walsh, a host of Catholic organizations approved of the altered rule, “including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA,” and only the bishops remain steadfast in their condemnation. According to their statement, issued shortly after word of the change was announced eight days ago, “the only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.” That seems to imply they want the rule to go away for everyone, not just Catholics. I’m as surprised as I am sure you are to learn the Catholic church might suggest something that seems on it’s face to be a ridiculous idea.

Actually, it isn’t just the bishops who persist in maintaining opposition to the contraception rule. Perhaps enabled by the continuing attacks from the Catholic church, the republicans have continued to take to the media to push back. Sean Hannity assembled an all-male panel of religious figures the night of the announcement, who compared the administration to Nazi Germany and claimed they would go to prison or even sacrifice their lives over “the war on religion.” (John Stewart’s excellent take on this panel is a must-watch.) Last Thursday, Foster Friess, who probably sacrificed a lucrative franchise of fast food joints named after himself to instead become a millionaire mutual fund owner and a Rick Santorum supporter and bankroller, told MSNBC that back in his day, “they used Bayer aspirin for contraceptives. The gals put it between their knees, and it wasn’t that costly.”

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Analysis Faith

the catholic birth control controversy

I didn’t really want to weigh in on the recent scandal about forcing Catholic-run institutions, like universities and health charities, to provide birth control to women. But it turns out this is a thorny issue that has gotten a lot of press, and most of it seems subpar. If you want a job done right…

The issue is that the Catholic church has a religiously based objection to birth control: its official policy is that “any action which, either in anticipation of the conjugal act [sexual intercourse], or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible” is “sinful” on the basis that it “is in conflict with God’s laws.” I will not address this position on its merits because it has none, so instead, let us assume it is a fact and proceed.

The first amendment is quite clear that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and religious freedom is one of the most jealously defended rights in America. Forcing a religious establishment to engage in behaviour that it finds to be “sinful” and “in conflict with God’s laws” clearly seems to make difficult the free exercise of not engaging in sin and following God’s laws. One counterargument is that no one is forcing Catholic women to use birth control, and that it should be up to them to do the honourable, guilty Catholic thing and bring that damned accident to term (read: post-collegiate job interviews); but in practice, given that a vast majority of Catholics use birth control despite its sinful nature, the church will end up directly paying for something it finds abominable under this rule. That means individual pharmacists filling prescriptions for the morning-after pill against their consciences, to say nothing of selling condoms and the pill to insured employees, etc. So I understand the rancor.

But consider the flip side of this argument. The first amendment prohibits any law “respecting an establishment of religion” too. Allowing a special exemption to a rule the rest of America has to follow on the basis of a religious belief seems as much a violation of the first amendment as the requirement was in the first place. Salon‘s Joan Walsh recently articulated a point that had occurred to me as well: suppose the Catholics had objections against child labour and occupational safety laws, to use her example. Would we then similarly grant them an exemption and let their altar boys into the coal mines? Then again, juvenile coal mining would never be an issue, since the same bishopric now crying foul about sinful behaviour have been putting those altar boys to a very different kind of use for the last few decades.

In response to the loud whining about this rule leveled not just by the child-molesting, latin-chanting, zombie-worshiping monotheists, but also by leading republicans (including Rick Santorum and the House Speaker), the Obama administration has changed the rule: now objecting organizations need not provide coverage, and instead women can get it directly from insurance providers. This strikes me as a reasonable compromise, except that, as NPR points out, many Catholic organizations are self-insured, meaning the rule change has no effect for them. And as that same NPR piece documents, not all Catholics are placated by this choice. Indeed, Rick Santorum still maintains that birth control shouldn’t even be a health insurance issue since it is comprised of “relatively small expenditures.” Nothing like Viagra, right Rick?

Really, this issue serves to underscore how unworkable partial health regulation is. Obamacare is the underlying justification for this rule, but if the administration really wanted to ensure health access, it would have demanded stricter legislative regulation on coverage if not a public option outright. Then the answer to this and related dilemmas wouldn’t be a change of the rule, but an option to abandon Catholic coverage entirely. By leaving health care to the private sector, there is still every possibility that market forces will leave gaps in coverage that government insurance would not abide. Of course the question remains whether a public option as a coequal to the private options could be competitive without being an unsustainable subsidy. The question of Obamacare generally is one I plan to explore iff it survives its pending Supreme Court challenge to be argued next month. Stay tuned.

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2012 Analysis Election History Speculation

thoughts about third parties

The GOP primary battle continues to rage, but Mitt Romney continues to dominate. Let’s recap: among viable non-Romney candidates, only Newt Gingrich remains in the race. Rick Santorum won in Iowa, but just barely, and has come in third or worst in all the other states to date. Ron Paul has yet to carry a state and admits he doesn’t yet know which ones he might. Newt Gingrich has only won so far in South Carolina, a racist southern state more likely than most to find resonance with “blacks should demand paychecks not food stamps” bullshit; and even then, his victory might well be attributed to a bump from some jabs he managed to get past the inept moderator at the debate held there days before the primary.

With contests in Minnesota and Colorado tomorrow, Romney is well positioned to double his collection of wins: according to PPP, he’s the clear favourite in Colorado and is in a more or less dead heat with Santorum in Minnesota. A win for Santorum there will not breathe life into his dying, unelectable bones, but the obvious loss Gingrich is about to face will surely kill all that remains of his momentum. It seems clearer and clearer that what has been conventional wisdom for months — that Romney will be the nominee — has been right all along.

All this would be considerably less interesting if there were any other uncertainties in the race. But Obama will not be primaried, and with unemployment rates starting to seriously drop, providing cautious optimism for some that a recovery is starting to kick back in, his reelection seems all but certain. Barring some cataclysm, does it seem reasonable to suppose that Romney could beat Obama? The latter is likely to enjoy something close to a repeat of the record black turnout in 2008, and Romney isn’t too popular even among conservatives (hence the unending support for the not-Romney candidate trending up at any moment). Obama is starting to put his toe in the general race now, saying he “deserves a second term” in an interview with NBC ahead of the Super Bowl. That’s a pretty nice time to have the national airwaves, and polls are showing he would do well in a race with Romney.

But all this is very sad! We must choose between a sitting president with a dubious record and a flip-flopping venture capitalist no one really likes. This ‘fact’ was ironically highlighted for me as I was reading Federalist 66 the other day and noticed this choice bit from Hamilton:

The [House of Representatives] will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen.

Ha! Of course, this did happen, but only twice out of the 56 presidential elections held so far. In 1800, before the 12th amendment changed the rules of the electoral college, the House deadlocked repeatedly and finally elected Thomas Jefferson after 35 votes. And in 1824, following the dissolution of the Federalist party, four candidates each gained a fairly significant slice of the electoral vote. Andrew Jackson beat his next closest rival, John Quincy Adams, by 10 points in the popular vote and 15 electoral votes, but missed a majority by more than 30 electoral votes. The House eventually selected Adams after Henry Clay, also running, gave the former his support; Clay was eventually named Secretary of State in what was called a ‘corrupt bargain.’

So given the Constitution has baked into it a way to resolve disputes between candidates when none obtains a majority of electors, a mechanism Hamilton thought would be used ‘frequently’, why has it remained unused for nearly two centuries? Even from the earliest days of the republic, the two-party duality has been a potent force in general elections. The Federalists and Anti-federalists were not officially recognized parties like ours today are, but they were responsible for bitter election battles in the late eighteenth century. Parties were more dynamic between that 1824 standoff and the civil war, but the formation of the Republican party in 1854 saw more or less the final manifestation of the two-party system we see today, with only a handful of serious third party bids since.

Modern laws make it harder for third parties. Ballot access usually requires meeting some minimum signature bar in a petition, which means parties need nationwide local coordination, something which requires a large establishment. Debates are basically bi-partisan affairs and usually do not include third parties. Mass defection to a third party might swing the election to the least desirable of all three (consider the charge that Nader lost Gore the election in 2000). States almost always award electors on a winner-take-all basis, so the incentive for voters in each state to make their voices heard on the national stage by picking perceived winners is high.

In that vein, I think the biggest reason that the two-party system persists is inertia. The parties are well-established and can pretty easily either gobble up any fringe third-party platform (or ridicule it as being Unserious, as has been happening to Ron Paul’s candidacy generally). Most issues are binary as far as the average voter is concerned: you’re either mostly for gay rights, or you’re mostly against them; you want increased social programs, or you want to cut them back; you mostly want to drill for oil or you mostly want to research green energy. It doesn’t help that these ideas mostly align with conservative or liberal ideologies very nicely: conservatives tend to want to stick to the ancient ways, while liberals want to change most aspects of society and government.

Then there’s the related issue of bipartisan consensus. Perceived political realities force politicians to cave to certain positions, which then silences debate. Look to Clinton’s welfare reform, “tough on crime” laws which had led to unprecedented incarcerations, the jingoism of the runup to Iraq war that seems to have returned but this time against Iran; and of course, the notion that taxes should not go up except maybe for the other guy. When both parties largely agree on so much, it can be difficult to see what the usefulness of a third party could be. Is there a third major platform in American politics today? Evidently not.

And that is the main problem. The Tea Party was swallowed by the Republicans since they aligned closely enough to allow it. Obama has already begun to adopt of the rhetoric of Occupy and might win several of its less aware and passionate members. But this is too bad. An adversarial third (or fourth, or fifth) party would make this election battle a lot more interesting than the inevitable “lesser of two evils” Obama-vs-Romney scorched earth, no-holds-barred steel cage match. And if more people demanded better at the ballot box, they would get it: that’s a political reality. Consider that before holding your nose for Obama (or Romney if you have no soul) in November.