Health care reform, Prohibition: legislation vs. constitutional amendment

The New Neo Posted on by

I was thinking what a huge and personal set of changes would result from the passage of the contemplated comprehensive health care reform bill, and how close the vote will be either way. If we dodge it, it will be by the skin of our teeth. And if it’s passed, it will be by the skin of Congress’s.

Many have observed that this is the first time a bill of such scope has been pushed by Congress without the legislation enjoying fairly large—and at least somewhat bipartisan—majorities. The reason is practical; it would ordinarily be political suicide to try to pass a transformative and unpopular (or even only marginally popular) bill. But that is exactly what the Democrats are poised to do—at least, if we believe their rhetoric, which may be mere bombast but which we must take seriously.

Our founding fathers were concerned with the possibility of tyranny of the majority, and they put certain safeguards in our government’s design in an attempt to protect against it. But there’s a limit to what they could do to prevent it if a majority was bound and determined to defy the will of the people. Our government has checks and balances, but in the end it relies on a certain basic agreement and cooperation. Both sides must respect the system in some general way in order for it to function.

For example, I was thinking back to Prohibition, another big piece of legislation (although nowhere near as big as this one) that affected people’s lives in a rather intimate fashion. But the mechanism by which it was passed was a constitutional amendment (the Eighteenth), along with the Volstead Act, through which Congress defined alcoholic beverages. The process by which an amendment is passed is much more difficult, and requires much larger majorities, than a mere act of Congress. So why did they bother?

You might answer that Prohibition had to be done that way because it was a federal ban on what was until then a function only states were allowed to prohibit—the intrastate (as opposed to interstate) sale, manufacture, and transport of liquor for consumption. Previously, many states had already had such a ban, but now it was made national.

But although that is true, it is not the whole answer. For example, in Obamacare there is a nationwide requirement that individuals purchase health insurance or face a penalty. This is unprecedented, and could certainly be considered an unconstitutional overreach by Congress. And yet there is no move to require Congress to pass this sort of bill through the amendment process rather than by the usual path for legislation, and I would hazard a guess that if it were passed and there was a constitutional challenge, the Supreme Court might refuse to hear the case, or be very reluctant to rule against Congress because of the separation of powers.

Congress can contemplate this sort of thing now because they have less fear of the consequences than they did back in 1920, when Prohibition was passed. That’s the big secret the Obama administration and this Congress has discovered (or perhaps rediscovered): if it has the power to do something, why not go for it? If they don’t care about re-election (for whatever reason), and if they don’t fear the Supreme Court—nothing can stop them.

Audacity, indeed.

Power update

The New Neo Posted on by

Still no power. This time I’m sitting with my laptap in a public library, having managed to snare one of the few empty desks and unused outlets. Never have I seen such a large crowd at the library before!

After I’m finished, I will go to stay with my son, who’s got power galore as well as wifi and an extra bed. So, no biggie—as long I don’t wear out my welcome (hey, after all I’ve done for you)….

In the powerless dark

The New Neo Posted on by

It’s nighttime and the power’s still out, although right now I’m in another part of town where the lights are as bright as usual. I’m sitting in a coffee shop loaded with people, many of them—like me—busy keyboarding away at their computers and charging their cellphones.

So it’s easy to pretend that all’s well, and that I just happened to decide tonight to write this essay amidst a lot of unaccustomed company.

But the truth is that in an hour or so I’ll unplug my laptop, get into my car, and drive home. Just a few blocks away the streets will suddenly darken, even the traffic signals will go off, and the cars will slow down and practice the quaint courtesies of stopping at busy corners to let each other pass.

When I arrive home, there will only be the full moon and a few stars to light my way, plus a flashlight once my car lights have been turned off. And I will marvel once again, as I did last time the power went out for days, at how dark the night is, and how bright the moon. Then I’ll go inside to featureless rooms, with only the flashlight (or the odd candle) to guide me. Neither illuminates much, but it will be enough.

How many electrical aids I usually rely on at night! Without them, I’m not only without light and heat, but I’m also without entertainment, except what’s provided by my mind. I can talk to friends, but only on my cell phone, and I need to make sure I charge it during the day so it won’t run out of juice at night. I can listen to my iPod—but again, musn’t waste the charge. TV is out, of course, as is my usual companion, the internet. Friends huddle in their own homes, which seem more far away than ever. A hot shower is an unimaginable luxury, a cold one too shivery to contemplate.

And even this precarious existence depends on two things: batteries, and the existence of a world outside that hasn’t lost its power. I can still go to a grocery store and get supplies, and even go to a place like this one where I’m sitting right now, having bought hot food and plugged in my computer. At night, the things that now keep me company—several flashlights, a transistor radio, the little travel clock I bought a while back from Brookstone’s (the one that makes all sorts of sounds like crickets chirping or the ocean roar)—are all powered by batteries, of which I have a huge but not inexhaustible supply.

And I know that in a day or two the power will come back on again. If it doesn’t happen by tomorrow, I probably will journey an hour or two to stay with a friend or relative, and then return when all’s well. There is really nothing to worry about. But every power failure drives home—in a way that is impossible to ignore—how very far we’ve come from being able to rely on our own resources to survive.

White House Secretary resigns, but not the right one

The New Neo Posted on by

I was in the car today listening to the radio and I heard something about a White House something-or-other secretary resigning today. I felt a small leap of joy at the thought that it had to be—just had to be—the insufferable Robert Gibbs.

But then I heard the next sentence and discovered that it was Desiree Rogers, the White House Social Secretary responsible for letting unapproved guests sneak into a state dinner on her watch. who now feels a deep and suddenly pressing need to pursue interests in the corporate world.

Would it were Gibbs. But I think he’s in it for the long haul.

Power outage–tune in later

The New Neo Posted on by

Much of New England dealt with an enormous storm and high winds last night, and I was no exception. Power outage time!

I’m in the wifi-enabled parking lot of a McDonald’s in a nearby town that seems to have been somewhat spared. I probably will return later today when it’s less crowded, and I’ll be planning to write something. Who knows, I might even get my power back by then.

Such fun. And it’s all Bush’s fault!!

Meanwhile, in the ongoing Democrat war against the CIA…

The New Neo Posted on by

…the House Democrats tried to sneak a provision into an intelligence bill that would ban and criminalize any interrogation tactic that a prosecutor subjectively believes is “degrading,” including but not limited to itemized practices such as “prolonged isolation,” “exploiting the phobias” of an individual, and the mere presence of dogs (nothing about pigs, but my guess is that would be a no-no as well).

Some alert Republicans protested:

“This will fundamentally change the nature of the intelligence community by creating a criminal statute governing interrogations,” said Rep. Pete Hoesktra (R-Mich.).

He added that it had appeared “out of nowhere” in a manager’s amendment.

“Would someone on the other side please explain the rationale behind this and why the majority was unwilling to have hearings on this issue?” he said.

Lo and behold, the addition was pulled this evening.

About that much-ballyhooed, analyzed, and largely unwatched “bipartisan” health care summit

The New Neo Posted on by

[NOTE: I’m bumping this up to keep it at the top. Scroll down for newer posts.]

Well, I tried. But a couple of minutes was it for me.

I suspect that the vast majority of people will not be watching this thing, either. A few stalwart (or drunk) souls are liveblogging; the rest will wait for the post-game wrapup, the reviews, and for the MSM to assemble the clips and sound bites that will make their team—Obama and the Democrats—look good, and the Republicans bad.

Will it matter? I doubt it. But like most bloggers, pundits, journalists, and other assorted commentators, I have no idea what plan really lurks in the minds of Obama, Pelosi, and Reid—except that I have come to the point of not trusting a word they say. Mike Allen of Politico quotes an unnamed “Democratic official” that the summit’s theater is designed to “give a face to gridlock, in the form of House and Senate Republicans,” and that it will be followed in due course by a push for reconciliation and passage of the Democratic bill we’ve all grown to know and love so well.

That would be my guess too, but it’s only a guess.

My brief look at the summit revealed that the Republicans, alas, did not follow Newt Gingrich’s gameplan. I didn’t think they would, but I still think they should have. Instead, it has been more of a back and forth, with Obama leading the show and calling the shots, and doing his best to look presidential and as though he’s really listening.

Ace points out that these seem to be the rules:

1. Democrats get more time because “I’m the President.”

2. Republicans may not criticise my bill. They can only talk about things on which we agree.

3. Republicans may not use the word “Washington” because it tips the scales.

4. Republicans may not use or reference an actual copy of the Senate bill. That’s a “prop” and it’s unfair.

Ace also noticed that, when Cantor criticized Obama, the expression on Obama’s face was a “pissed-off grimace.” During the few minutes I watched, I noticed something like that, too, although it was fairly subtle: an impatient annoyance that Obama cannot hide when listening to criticism of himself, try though he may.

Those of you with stronger stomachs than I can watch the rest. Feel free to vent in the comments.

[ADDENDUM: Interesting observation from a comment at Ace’s: the Democrats had mostly sob stories, the Republicans had mostly facts. That old heart/mind dichotomy.]

Susan Estrich, please check your facts: single party dominance

The New Neo Posted on by

I happen to like Susan Estrich more than I do most liberal Democrat pundits. She isn’t afraid to criticize her own party, for example (see this and this).

But Estrich lost me at the starting gate when this article of hers began thusly:

Something has gone very wrong.

Was it just a year ago that Democrats assumed more control in Washington than the party has had in my lifetime? It was.

Actually, Susan, it wasn’t.

Estrich was born in 1952, and therefore could be said to have been alive and even sentient during the Carter administration. In fact, she was in her the middle of her last year at Harvard Law around the time Carter was inaugurated in January of 1977.

When the Democrat Carter was president, for the first two years of his administration he was dealing with a Congress that consisted of 292 Democrats to 143 Republicans in the House and 61 Democrats and 39 Republicans in the Senate. That’s an even more powerful Democrat presence in Congress than Obama has enjoyed.

And the second two years of the Carter administration weren’t far behind the first two: 277-D to 153-R in the House, 58-D to 41-R in the Senate. Compare this to the present Congress under Obama, 258-D to 177-R in the House (although it keeps changing slightly due to deaths and retirements) and 57-D (down from 58 at the outset), 2 Independents who caucus with Democrats, and 41-R (up from 40 with Scott Brown’s election).

What’s more, if we’re really talking about the lifetime of Susan Estrich, the first two years of the Carter administration don’t even set the record for Democrat dominance in Washington. For the first two years of his administration, JFK had a Congress that consisted of 262-D to 175-R in the House, and a powerful majority in the Senate: 64-D to 36-R. The next Congress, which was shared by Kennedy and then LBJ after the assassination, was very similar, with even more Senate dominance: 258-D to 176-R in the House and 67-D to 33-R in the Senate. And these numbers were increased in the first two years of LBJ’s second term: 295-D to 140-R in the House and 68-D to 32-R in the Senate (nor did they fall so very much below that for the second two years of his second term: 248-D in the House and 64-D in the Senate). When you think about LBJ’s legislative record, remember that, not only did he know the ins and outs of Congress intimately in a way few presidents have, he also had the benefit of majorities that very few have ever known.

So Obama’s lead is hardly unprecedented. In fact, it is dwarfed by other years of Democrat dominance in the second half of the 20th century. Republicans never enjoyed such power during the same period; for the most part, Republican presidents have had to contend with Democratic Congresses or mixed or weakly Republican ones.

Even if we take the entire 20th Century, we’d have to go back to the very beginning—Teddy Roosevelt—to get Republican majorities and a Republican President that begin to approach the Obama/Kennedy/LBJ/Carter figures. Herbert Hoover’s first term came close as well, but then there was a long period of Democrat dominance, culminating in the most strongly one-sided administration and Congress of all during the 75th Congress, the first two years of FDR’s second term: a whopping 333 Democrats in the House and 75 in the Senate. In fact, although that was the peak, the numbers held up pretty well for several elections, with FDR enjoying huge majorities right up until the 78th Congress in 1943, when the Democrats’ grip finally loosened a bit, down to 57 in the Senate and 222 in the House, poor things.

Why am I going into this in such detail? The first point I want to make is that these facts are very easy to check (although I composed this rather quickly, so wouldn’t it be ironic if, in attempting to correct Estrich’s error, I made a few myself?). I continue to be surprised at the sloppiness of the supposed political experts and their sweeping allegations about history. Anyone who was around during those years might not have known the exact figures (I certainly didn’t). But for anyone with a memory, a warning bell should have gone off at Estrich’s claim.

The second point is that, ever since the Great Depression, Democrats have held the reins of government more often and more tightly than Republicans have. The first time this occurred the result was the New Deal, the second time the Great Society. The third was the surprisingly weak administration of Jimmy Carter (he and his Democratic Congress failed to get along). Except for the Camp David accords, the main events of the Carter’s years were negative: losing Iran to the mullahs, and stagflation. What will be Obama’s legacy?

Reconciliation and sunset provisions

The New Neo Posted on by

Here’s my question: do bills passed by the reconciliation process require the inclusion of a five-year sunset provision? And if so, why has this fact hardly been mentioned in the ongoing discussion about using reconciliation to pass health care reform?

Here’s a seemingly relevant Wiki entry:

The Byrd rule [for the reconciliation process]…allows Senators to raise a point of order against any provision held to be extraneous…Importantly for sunset provisions, the Byrd Rule also defines as extraneous provisions that “would increase the deficit for a fiscal year beyond those covered by the reconciliation measure.” Since the Budget Act states the budget resolution covers at least the four years following the “budget year” which is typically the year following the year in which it adopted, that is the usual period of time. However, budget resolutions have covered periods as long as ten years, so a reconciliation measure may cover the ten years. This rule has the effect of allowing a point of order to be raised against any spending increase or tax cut that does not contain a sunset provision ending it after five or ten years. Overcoming a point of order requires cloture, and thus a three-fifths majority of 60 in the Senate. In short, a net effect of the Byrd Rule is to require that any spending increase or tax cut be approved by a majority of 60 if it does not contain a sunset provision assuring no increase in the deficit after the budget resolution period.

If this would mean that any health care reform bill passed by reconciliation would need to have a five-year (or ten-year??) expiration date, and since many of the provisions of Obamacare don’t kick in for quite a few years, would it not appear that the entire system would disintegrate five years from passage unless passed again?

These arcane Senate rules are certainly not something I’m familiar with, to say the least. But if true, I wonder why we’ve heard virtually no discussion of the sunset problem. Obviously, reconciliation was never meant to be a way of passing sweeping transformative legislation of this sort. But this rule might afford a built-in way to undo this law, if initially passed; just let it expire.

Of course, by then our entire private health insurance system may have died. And to those proposing this travesty of a bill, that’s probably a feature, not a bug.

[NOTE: Jay Cost has more on the reconciliation process—much more. But he doesn’t mention the sunset provisions. The gist of his piece is that since reconciliation has never been used to make such hugh changes before, no one can predict how it would—or wouldn’t—work.]