Supreme Court: Court Receives Appropriate Critique at the State of the Union; Unelected Justices Must Be Judicious in Striking Down Legislation

President Barack Obama delivered a mild critique of the Supreme Court’s decision in Citizens United v. Federal Election Commission (08-205) in his State of the Union address.

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.  (Applause.)  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  (Applause.)  They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

While there has been some criticism of the President’s words, I think that he was appropriate in stating his disagreement. The Supreme Court, as an institution, is a branch of the United States Government, which itself exists with the consent of the governed. The Justices had acquired unjustified God-like status (much of the esteem for the Court went away with Bush v. Gore), but they work for the taxpayer. As such, they should be critically analyzed just like the Executive  and Legislative branches.

In Citizens United, the Court’s majority went down a questionable path once they decided to equate corporations (legal fictions) with human beings with regard to the application of the First Amendment. Given that ownership of the corporations in the United States is not restricted to United States citizens, the decision of the Court could have unintended consequences.

This situation brings the Court’s practice of striking down legislation on Constitutional grounds into focus. The Justices are unelected and serve for life. When they declare a law unconstitutional, there is no avenue for recourse except a unwieldy Constitutional Amendment process. For these reasons, the Justices must carefully use Constitutional strikes against legislation.

There should be a way of determining the propriety of Constitutional strikes. Where a legislation clearly goes against a Constitutional provision, the Court acts at its strongest. The Court is at its weakest when it makes decisions that set broad policy beyond relatively isolated cases.

Broad policy is for the Congress, where the citizens can vote to decide whether to keep the officials in office or decide to place another person in the seat. Where broad policy issues are involved, I think the Court should narrowly isolate Constitutional issues, giving heavy weight towards deferring to Congress to allow them an opportunity to make fixes to problems the Court had identified. If Congress does not act to address the identified problem, then the Court could think that the institution had decided to allow the law to be struck down.

This method of reasoning when to apply Constitutional strikes cannot apply in cases like Citizens United where Justices preemptively decided that the case will be decided on Constitutional grounds, even where there are legitimate policy issues involved.

If the Court makes policy decisions, covered up with a Constitutional strike, then the Court has to accept that it will be criticized in the public sphere and not only in rarefied law journals.


Federal Fiscal Commission: Members of Congress Should Reject S. 2853; Congress & President Should Use Appropriations, Budget Committees

Apparently, President Barack Obama supports a bill which would create a fiscal commission to deal with the deficit (S.2853).

I oppose this bill on Constitutional and and institutional grounds. The Constitution provides that the legislative power resides in the Congress (Article I, section 1). The Congress also has the power of the purse (Article I, section 8), a power that belongs only to Congress.

A fiscal commission that has appointees from among the Members of Congress along with 2 appointees from the President, with powers to make recommendations that can only be voted up or down is an infringement of Article I and therefore the bill should be rejected. After all, Congress already has a committees on the budget and appropriations. Why not use the existing system?

The President has stated that if S. 2853 fails to pass, he would create a fiscal commission within the Executive branch. This he is able to do; the commission just will not control any final spending decisions (an Article I duty).

Health Care “Reform”: Best Plan–Redo the Bill to Be in Line with the Expectations of the Citizenry; Reject Any “Plan B”

With a new U.S. Senator-elect from Massachusetts, it had been proposed that the House pass the Senate’s version of health care “reform,” H.R. 3590, and send it to the President. This would be unwise for several reasons.

The House and the White House negotiated with the labor unions about the so-called cadillac tax on high cost health insurance plans. If this is done, would the citizenry have to assume that the word of its representatives is dirt when they turn their back on good-faith negotiations? [Note: Those negotiations were inadequate.]

Moreover, the Senate Bill is rife with problems and is itself an offensive document: The Senate completely ignored the work of the House in H.R. 3962, when the House, too, passed it with narrow margins. I do not see how House members can just pass H.R. 3590 without having any input on H.R. 3590 whatsoever. Why doesn’t the Senate pass H.R. 3962 [I argue this theoretically because the House bill, too, is far from ideal (just not as far out as H.R. 3590)]?

The Senate Bill also has at least two significant flaws: a mandate to buy a private company’s product or be fined by the Internal Revenue Service and the tax on high cost health insurance plans, which only encourages the further erosion of expensive, basic health insurance. This is not reform at all, only a stimulation of the health insurance industry. It would be better for the health insurance companies to control their outrageous overhead first.

Real health care reform starts also with nothing less than single payer.

Health Care “Reform”: President Barack Obama Blames Republicans of Potentially Acting Like Democrats

The President essentially blames Republicans of being supplicants of corporations, when he and his Administration are doing the same thing now.

Consider these quotes (emphasis (in bold) mine).

Excerpt from the remarks of President Barack Obama at the house Democratic Caucus Retreat, January 14, 2010:

So, I know everybody in the media is all in a tizzy — “Oh, what’s this going to mean politically?”  Well, let me tell you something.  If Republicans want to campaign against what we’ve done by standing up for the status quo and for insurance companies over American families and businesses, that is a fight I want to have. (Applause.)  If their best idea is to return to the bad policies and the bad ideas of yesterday, they are going to lose that argument.  What are they going to say?  “Well, you know, the old system really worked well; let’s go back to the way it was”?  That’s not going to appeal to seniors who are now seeing the possibility of that doughnut hole finally closing and so they can finally get discounts on their prescriptions.  (Applause.)  That’s not going to appeal to the small businesses who find out all the tax credits that they’re going to get for doing right by their employees — something that they have been wanting to do, but may not have been able to afford.  It’s not going to be very appealing to Americans who for the first time are going to find out that they can provide coverage to their children, their dependents, all the way up to the age of 26 or 27.

Really, the corporatist (“centrist”) Democrats are doing the same thing that the President blames the Republicans of  planning to do in campaigns.

Excerpt of interview with journalists, Matt Taibbi and Robert Kuttner, on the Bill Moyers’ Journal:

ROBERT KUTTNER: Rahm Emanuel, the President’s Chief of Staff, was Bill Clinton’s Political Director. And Rahm Emanuel’s take away from Bill Clinton’s failure to get health insurance passed was ‘don’t get on the wrong side of the insurance companies.’ So their strategy was cut a deal with the insurance companies, the drug industry going in. And the deal was, we’re not going to attack your customer base, we’re going to subsidize a new customer base. And that script was pre-cooked so it’s not surprising that this is what comes out the other side.

BILL MOYERS: So are you saying that this, what some call a sweetheart deal between the pharmaceutical industry and the White House, done many months ago before this fight really began, was because the drug company money in the Democratic Party?

ROBERT KUTTNER: Well, it’s two things. Part of it was we need to do whatever it takes to get a bill. Never mind whether it’s a really good bill, let’s get a bill passed so we can claim that we solved health insurance. Secondly, let’s get the drug industry and the insurance industry either supporting us or not actively opposing us. So that there was some skirmishing around the details, but the deal going in was that the administration, drug companies, insurance companies are on the same team. Now, that’s one way to get legislation, it’s not a way to transform the health system. Once the White House made this deal with the insurance companies, the public option was never going to be anything more than a fig leaf. And over the summer and the fall, it got whittled down, whittled down, whittled down to almost nothing and now it’s really nothing.

Full video of interview is on the PBS website.

Health Care “Reform”: In Haste, Senate Transferred Problems to House; Subsequent Negotiations in House Inadequate

The ongoing negotiations in the House of Representatives this week exemplified the trouble that the Senate bill has caused for Representatives. That an election in Massachusetts could cause the whole bill to collapse shows that the entire process was flawed. The citizenry of the United States have been let down by most of its elected representatives (including the President and his Administration) with this horrible health care “reform” bill because single payer was simply shut out of the discussion.

The Senate, in its deliberations of H.R. 3590 (using a strike all motion), did not even consider the House-passed bill, H.R. 3962. The Senate passed a completely separate version of the health care “reform” bill from the House-passed bill. The problems noted in the bill–the mandate to buy private health insurance, the so-called cadillac tax on high-cost insurance plans, and other problematic provisions–should have been handled in the Senate. But the Senate was in such a rush to pass the bill, the full weight of the problems and a concurrent demand for the House to simply approve of it fell upon the House.

They citizenry of the United States have not been well served with this health care legislation. I have little confidence in the negotiations on the cadillac tax on high-cost insurance plans. Using health care “reform” as a vehicle to raise taxes on the working class to reduce the deficit is unseemly. Certain corporations were reviled for using high deductible health insurance plans for its employees. It seems that an untested (in the real world) academic theory is being used to make this nefarious practice the norm rather than the exception.

“Colorblindness”: Senator Harry Reid’s Comments about Obama Reveals America’s Racial Truth

In the midst of the disastrous health care bill, it has somehow come to light that Harry Reid, U.S. Senator from Nevada and Senate Majority Leader, stated that

“He (Reid) was wowed by Obama’s oratorical gifts and believed that the country was ready to embrace a black presidential candidate, especially one such as Obama – a ‘light-skinned’ African American ‘with no Negro dialect, unless he wanted to have one,’ as he later put it privately,” according to the book.

I believe that Reid has spoken openly about reality in the United States. It is the reason why I could not believe that the election of President Obama represented a “post-racial” society. The statement should not allow anyone to forget the disgusting excise tax on high-cost health insurance plans.

American society is a White hegemonic system, where White people control social power. Even the President is half-White, a fact he specifically reinforced during the campaign.

United States (population: 281,421,906 (2000 Census)

Race Percentage of population Number
White 75.1% 211,460,626
Black 12.3 34,658,190
Native American 0.9 2,475,956
Asian 3.6 10,242,998

This system was related in the following saying:  If you’re White, you’re alright, if you’re brown, stick around, and if you’re Black, step back. Rev. Joseph Lowery referred to this in his benediction.

Even more, the latent issue of the cost of biracial upward mobility being used as a sign of progress. The unfortunate reality is that as these “success stories” are advanced, the old hierarchy of color is reinforced. From P.B.S. Pinchback, Douglass Wilder, Rev. Patrick Healy, S.J., former Senator Edward Brooke, and others, many of the so-called first Black people to gain a certain position appeared White.

In the end, Reid, in his statement only acknowledged the sad reality of American society. It should not at all distract from the horrible Senate health care “reform” bill.

Health Care “Reform”: On the Unacceptable So-Called Cadillac Tax (a Tax on High-Cost Health Insurance); Democratic Party Divided

Some in the House of Representatives appear to be uncomfortable with the so-called cadillac tax. Simultaneously, President Barack Obama supports the unwise excise tax on high-cost health insurance plans.

The entire affair is dispiriting because what the health care  reform that the public sought from an Obama Administration has instead become an issue that will cause intraparty antagonism and disappointment because the bill on the front burner does not begin to address the problems.

Instead, Obama Administration and many people in the Congress support a tax that will fall upon those who can least afford it without the benefit of the single payer plan.

The flaws of the Senate bill (H.R. 3590) must be fixed before passage. I do not care about the fragility of the 60 votes. That should not be an impediment against improving the bill.