Health Reform Might Be Unconstitutional Because Democrats Compromised.

So, a judge in Virginia ruled the individual mandate in the new health reform law unconstitutional.  Big deal?  

If you are in favor of providing universal coverage to everyone, the individual mandate is key.  Yes, there are ways to circumvent it (for example, provide a tax credit to those who purchase health insurance; or charge a penalty to anyone who opts out and then signs up), but as the reform law is currently constructed, the mandate is essential.  Without it, insurers can hardly be expected to provide coverage to everyone regardless of preexisting conditions, and they will surely file their own lawsuits if the mandate is ripped out.  Soon we'll be back where we started.

Still, two other judges ruled that the mandate is just fine.  So why would one man's opinion matter?  Well, the revealing fact is that of the judges who opined on this thus far, those who ruled in favor of the mandate were nominated by a Democrat and the one who rules against it was a Republican appointee.  In short: the constitutionality of the mandate seems to be partisan - imagine that!  Now, with multiple diverging opinion, the case is guaranteed to go up to the Supreme Court, where a panel of 5 conservatives and 4 liberals is fairly likely to strike it down (OR I'm just a cynic and the judges are totally non-partisan).

Anyhow, the issue I wanted to address is not what the future holds, but rather how we got here.  The individual mandate is allegedly unconstitutional because the federal government cannot force people to purchase a commercial product.  Think about that for a moment:  the federal government cannot force people to purchase a commercial product.  In other words, the current challenges to the mandate would have no teeth if it weren't for the fact that the current design of the law relies on people buying coverage from insurers.  The irony is that the genesis of that construct lies not with the Democrats - who generally favor governmental provision of health benefits (the public option, remember?) - but rather with the Republicans who prefer any government benefit to be administered by corporations (Medicare Part D thanks to Bush, social security, if Bush had his way, the military contractors, etc, etc).  

So in other words, had the Democrats had their way on the design of health reform, there would be no grounds for a constitutional challenge.  Of course that was not the preferable path, since back then we needed everything to be BIPARTISAN.  And what did they get in return for this compromise?  A single Republican vote?  No, not a single one.  Instead they now have this compromise coming back to bite them in their ass.  

I find it hard to believe that the Republicans were smart enough to plan this ahead of time - eliminate any governmental option to provide coverage to get a chance at repealing the law in court.  I think the facts just conveniently lined up that way.  But I think it is instructive to point out - especially as we are talking about the tax cut "deal" between Republicans and Obama - that these kinds of compromises tend to have unintended consequences down the road.  So, as some Democrats are slapping themselves on the back about what a good deal they got ("back-door stimulus"), I'm just thinking:  you just wait.

 

An email from Columbia's SIPA to their students proves that we now live in China.

“We received a call today from a SIPA alumnus who is working at the State Department. He asked us to pass along the following information to anyone who will be applying for jobs in the federal government, since all would require a background investigation and in some instances a security clearance.   The documents released during the past few months through WikiLeaks are still considered classified documents.  He recommends that you DO NOT post links to these documents not make comments on social media sites such as Facebook or through Twitter.  Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government.”  Via Democracy Now.

WikiUgh, or how annoying some reactions to WikiLeaks are.

Think what you want about WikiLeaks, there isn't much to like about Julian Assange's "style."  He kind of sounds like an egomaniacal prick.  And yet I was disappointed that people - ones I usually find to be rational and above this kind of thing - can't somehow get over his persona in their assessment of the latest dump of data or what WikiLeaks does, generally.

Last night, Jon Stewart couldn't help himself and make fun of Assange.  This was right before he postulated that "If there's total transparency, we won't really see anything."  How deep.

Then Ezra Klein chimed in: "I'm not sure this guy's incentives -- which by now include impact and publicity -- are really trustworthy."

Really guys, ad hominem attacks?  

How strange that we didn't see any of those reactions (definitely not from the liberals), when the leaks were exposing horrific information about the US wars in Afghanistan and Iraq.  I suppose that was barely noteworthy?  Or maybe that was stuff that validated their opinions?  But now that WikiLeaks published a whole bunch of mundane info from the State Department (thought not all of it was totally dull - and I am not talking about the gossipy crap about various foreign leaders, I mean stuff like this, which seems to be getting totally lost in the shuffle - not unsurprisingly), we are all up in arms about the propriety of what Assange is doing?  Really?

The more bizarre line of reasoning that I first saw emerge in a Brooks column here, is that this disclosure will damage the global conversation or even the ability of US diplomats to do their work.  I don't find that entirely convincing, but it's not totally without merit:  I suppose having your raw thoughts about someone plastered all over the internet probably doesn't help your relations.   I can see that.

But then yesterday, looking at the prospect of a data dump from a major US bank, Ezra Klein took that argument even further, and argued that this kind of disclosure will stymie information sharing of all kind:

"If he's really effective, the likely outcome won't be that people know more, but that they know less, as major institutions -- both public and private -- will stop sharing their information so widely internally and stop writing so much of it down. That means decision-makers will know less, bureaucrats and managers will know less, reporters will know less, historians will know less, and so on."

I suppose so if it wasn't for the fact that short of verbally communicating everything - which is impossible - there is no way to avoid digital communication and record-keeping in this day and age.  First, it is simply impractical, and second, people are dumb and will always put self-incriminating shit in writing.  As an example, a full decade after the original Wall Street email scandal (analysts pushing tech stock and calling them a piece of crap in private emails), we had the exact same thing happen with mortgage securities (trader's salling products they called crap to clients to whom they have full disclosure and fiduciary duties).  

Besides, at the other extreme, is the implication that we should never publish incriminating records and prosecute accordingly for the fear that we may inspire corporate insiders to sensor their written communications?  More importantly, why exactly would they feel the need to sensor themselves if they aren't doing anything sinister?  Or are we now concerned about protecting criminals?  

The Jon Stewart Philosophy?

From the man who gave us "If we amplify everything, we hear nothing", comes a new pearl of wisdom: "If there's total transparency, we won't really see anything."  I think I see a pattern?