Saturday, October 05, 2013

Is this a rant? I can't tell anymore.

I promised someone that I'd explain why the House Republicans' actions regarding the current partial government shutdown are not as arbitrary as they may appear in the media. I'm spending particular attention to the conservative point of view, because that's what we're talking about. The explanation is for those Leftists with the patience to listen. It is deliberately one side's point-of-view.

In our discussion we'll need to look at the players and notice who they are. This is important. We'll also look at the fact that their issue is the Affordable Care Act (ACA). Also important.

This will be long, and it will not have many pictures. Sorry.

For reference:
     Here's the Affordable Care Act (PDF 906 pages)
     And the Reconciliation Act (PDF 55 pages)

Now let's study some history.

Wikipedia summarizes the legislative history of the ACA in more detail, and I invite you to read more there. Here are some highlight relevant to our discussion:

You already know the ACA is a huge overhaul to our healthcare insurance system, and everything that touches it. It has from the very beginning been controversial, with Leftist proponents declaring that universal healthcare is a "right", and Conservatives opposing the law on grounds that it violates personal liberties and they believe it's both economically unsound and unconstitutional. My purpose here isn't to argue over which side is correct on these matters. But the constitutional argument will be important to motivation. Among the ACA's many features are an "individual mandate", which requires all people to purchase insurance or pay a fine; and an "employer mandate", which requires all employers with more than 50 employees to offer health insurance to their full-time workers or pay a penalty.

In 2009 the House of Representatives passed something called "Affordable Health Care for America Act". This was pretty much ignored and died quietly. Meanwhile, A completely different bill was gutted and replaced in its entirety by the Senate. No fooling... H.R. 3590 was supposed to give tax breaks to military members who were trying to buy or sell a house. It had nothing whatsoever to do with healthcare. Remember this when someone tells you it's "disingenuous" to add amendments to a bill. The Senate took the entire bill.... they threw it away... and they replaced the contents with a massive healthcare proposal that had nothing to do with the original bill.... and they pretended that it originated in the House because they kept the number. The only thing about the bill that originated in the House was its number. A system of exchanges, mandates, fees and penalties was proposed, passed by the Senate, and sent to the House of Representatives for consideration and was sent back to the Senate on its way to the President for a signature.

Whether you like the ACA or hate it, you must concede that it was a big-ass bill. So big that some of the lawmakers who sponsored it never read it. And despite Obama's campaign promise that he would have "the most transparent administration ever," (a matter of some debate) and that all bills would be posted on-line, the public didn't get to read it in advance. We were famously told by then-Speaker Nancy Pelosi that "we have to pass the bill so that you can find out what is in it away from the fog of a controversy."

This caused no little bit of consternation among Conservatives. For one thing, it's completely condescending. For another, it's patently obvious that you have an infinitely better chance of "finding out what is in it away from the fog of a controversy" if you're able to just read the plain text without commentary. It was the lack of transparency that generated that "fog" she was talking about. The only thing "transparent" about it was that her statement was a ploy to pass the bill sight unseen so that the voters wouldn't be able to complain before it was too late.

And to what extent did they go to keep this "sight unseen"?  Well, Republicans weren't even part of the negotiations. Let's let CNN's Jack Cafferty explain it. As you watch this, I want you to keep in mind that Cafferty is a commentator on CNN; and that he's earned distinguished recognition in his career, including the Edward R. Murrow Award, an Emmy award and the New York Associated Press State Broadcasters Award:

Cafferty's closing statement was prophetic. Keep reading.

All this secrecy and shutout tactics worked. The ACA was passed by the House of Representatives (then controlled by the Democratic Party), and was eventually signed into law on March 23, 2010, and we got to see what was in it.

It should be hardly surprising that the Republicans have no love for a plan concerning which they were shut out of the legislative process. Conservatives were even less thrilled to find out that the details of the law that had to be passed to see were somewhat different from the picture painted by its proponents. Among other things, it provided "affordable care" by imposing additional fees on pharmaceutical drugs and medical devices. We found that our costs overall would be significantly different than what we were told, and that in many cases we would NOT get to keep the insurance we have, although we were strenuously and repeatedly told that we were.

Almost immediately, lawsuits were brought to declare the law unconstitutional on multiple grounds. One, the National Federation of Independent Business v. Sebelius, was brought before the Supreme Court.

Now it gets a little dicey. 
      (really? They already gutted and replaced a bill!)

From the inception of the ACA, President Obama promised that it wouldn't raise taxes, and the government never once argued that it did raise taxes. Instead, they described a system of fees and penalties. In fact, the majority of the Supreme Court did strike down the part of the law pertaining to Medicaid expansion, and found that the individual mandate ran afoul of the Constitution's Commerce Clause and the Necessary and Proper Clause. Basically, up to now it's not been in the Government's power to make you buy stuff, so you couldn't be penalized for not engaging in commerce. However, having already found that the law could not survive the Commerce Clause, Chief Justice Roberts in the 5-4 majority opinion (PDF) ruled that the fees and penalties were in fact taxation and not fees and penalties at all, even though the law doesn't call them taxes, and the Justice Department itself did not say they were taxes, AND the Court itself ruled that ACA wasn't covered by the Anti-Injunction Act because it contained penalties and not taxes. The end result would be that the inaction that cannot be regulated under the Commerce Clause can be taxed. Bottom line... they can't penalize you for not buying insurance, but they can tax you if you don't, and not tax you if you do. Looks like a penalty, acts like a penalty, spends like a penalty. It IS a penalty in every particular except for the stroke of Justice Roberts' pen. If not for that declaration, which does nothing to change the actual fact of the penalties, it would be unconstitutional.

Again, this ruffles Conservative feathers because it is an astonishing move for a Justice to introduce a meaning into law that is neither in the language of the law, nor argued for by the Justice Department as being in the spirit of the law. This is such a tortured reading of the law that I think it's fair to say that Justice Roberts and the other four Justices just made it up. Conservatives don't like "legislating from the bench", as it's a violation of the Constitutional separation of powers. Nevertheless, that's the ruling we're living with.

But there's another issue which was NOT considered by the Justices.

If the ACA raises taxes, as the Supreme Court has ruled, and it originated in the Senate as it plainly did, then many feel it runs afoul of the Origination Clause because taxation bills must originate in the House of Representatives. Now, the Senators claim that all they did was "amend" H.R. 3590 by taking everything out of it and replacing the entire thing, but that is understandably a highly debatable point.  In other words, there is still an open and legitimate question as to whether the ACA is Constitutional on those grounds.

That question is currently the subject of a lawsuit, Sissel v. HHS (PDF) which is working its way through the circuit courts with the intent to appeal to the Supreme Court.

It is certainly possible to say, "well, it's too late now, we can't strike it down for unconstitutionality because both chambers passed it and the President signed it." It's possible to say, but not possible to get away with without court intervention, because that same reasoning would prevent any law from being declared unconstitutional for any reason. It would be impossible, for instance, to strike down a violation of the First Amendment so long as it passed the House and Senate and had a signature. It would completely invalidate the power of the Supreme Court. This is a plainly ridiculous outcome, so it can't be correct. Therefore the origination claim actually has some legs.

So here we have the law coming into effect in the present, and it's not quite the settled matter of law that the President would have you believe. We'll have more on that claim in a moment, too.

That brings us to today, where the House is trying to have these issues addressed. Meanwhile, the Senate and President resolutely demand the passage of an entire, unmarked, unchanged budget and telling any camera they can find that the House is just being inexplicably obstinate because they're so darned mean. And we will, for just a moment, ignore the spectacle of one co-equal branch of government demanding that another not perform the functions to which it's morally obligated and Constitutionally entitled.


Remember wayyyy up top where I said we have to look at the people who are making Obamacare an issue in the budget battle? Yes? Well, this isn't the House that passed the ACA, and that's not just a matter of semantics.

On October 1st, the President heralded the start of the ACA, declaiming:
"I know it's strange that one party would make keeping people uninsured the centerpiece of their agenda. But that apparently is what it and, of course, what's stranger still is that shutting down our government doesn't accomplish their stated goal. The Affordable Care Act is a law that passed the House, it passed the Senate, the Supreme Court ruled it constitutional. It was a central issue in last year's election. It is settled. And it is here to stay."
The President is either mistaken or deliberately mis-stating the Republicans' position on several points. I'm unaware of any candidate who ran on a platform of "keeping people uninsured". They would rather fix the economy and get people employed so they can buy insurance -- or not -- as they themselves desire. They ran on a platform of retaining control of your own Life and Liberty, and economic stability.

He's also mistaken in saying that their goal isn't addressed by shutting down the government. What they're addressing is not primarily the funding of Obamacare. Rather, they want the individual mandate delayed (much as the President has already decided not to enforce the Employer Mandate for one year. I'd say he "delayed" it, but he doesn't have the Constitutional power to change the legislation in that fashion. If you hold him to his enumerated powers, he's just basically decided to allow everyone to break the law for a year). In voting to delay or "de-fund" Obamacare, the House is addressing the new taxes that are imposed by that legislation. You remember now that these new taxes are the only reason that the ACA was not struck down in its entirety as being unconstitutional. Taxation is a proper topic to be addressed in a fiscal legislation.

Since the partial shutdown began, a secondary goal has presented itself. The "essential" government functions are still up and running. By shutting down non-essential functions, the freshman Congressmen have found an opportunity to highlight the sheer number of non-essential functions there are, and how little they affect the average American. This is so obvious that the President has had to resort to tactics much as he used in sequestration, to make the shutdown as painful as possible. So on the pretext of having no money, the President has spent additional money for mounted guards and barricades to actively block access to open-air monuments that have never before been blocked during any of the previous 17 "shutdowns". I used to live in Washington DC. In the America I lived in, those monuments were just accessible all the time. You could go there at midnight and walk, even when there were no guards, no attendants, no gift shops. The President is spending more to keep us, the People, away from them than he did when they weren't "shut down". Now he's tried to close Florida Bay. He clearly wants you to feel the effect of cutting out the waste that you wouldn't otherwise feel at all.

Likewise with Harry Reid, Democrat, leader of the Senate. When asked by Dana Bash (a reporter), "But if you can help one child who has cancer, why wouldn’t you do it?" Reid responded, "Why would we want to do that? I have 1,100 people at Nellis Air Force base that are sitting home. They have a few problems of their own. This is — to have someone of your intelligence to suggest such a thing maybe means you’re irresponsible and reckless."  Why indeed would he do that? His entire premise is that all of that big honkin' government is absolutely essential. It must be an all or nothing approach. Nothing can be prioritized. Nothing can be delayed. Irresponsibility and recklessness exchanging their labels with prudence and restraint. Up is down, left is right, black is white, and "non-essential" is "indispensable". A show of compassion would damage his valuable political point.

The President is correct about it being a central issue in last year's election. But we can't stop at that. The ACA was signed into law on March 23rd, 2010, just prior to the November 2010 elections. The Supreme Court ruled on June 18th, 2012, just prior to the November 2012 elections. In both cases, all 535 seats in the House of Representatives up for election. In both cases, the ACA was a central issue and in both cases the Republicans gained or retained control of the House. These majorities were elected after "Obamacare" passed and after the People got a chance to find out what was in it. They were elected after it was clear that there were actual (not potential) cases of employers firing, not hiring, or reducing full-time employees to part-time status to avoid the new taxes. They're the ones who were elected to spank the ones who passed "Obamacare" unread. Ted Cruz (whose filibuster you remember) is one of the freshmen, and he came in with a mandate from his voters. So it's not clear what the President intended to prove by the remarks, except that the voters elected representatives who were opposed to the ACA. This is what they voted for. Both these new lawmakers and their constituents rallied against Obamacare, feeling a bit like the schoolboy who got beat up by one bully so the other one could steal his lunch money. In their view they've got legislation created by an irregular process, sold on the basis of lies, and supported by a ruling that doesn't resemble the law. As stated in the New York Post,  "ObamaCare swiftly is becoming the biggest bait-and-switch in American history."

The President is also mistaken about it being "settled". It is ALWAYS the prerogative of the People to change the laws under which they live. Can you imagine how stupid it would sound if you said that Prohibition could not be overturned because it was "settled"? Or segregation? Well, it sounds every bit as stupid when you say it about any other law.

These stubborn Conservatives were elected on this very platform, and they are carrying out the purpose for which they were elected. Although you may not agree with their position, it is hardly capricious. It's possible that they will lose re-election for the bad ju-ju they're stirring up. It's equally possible that they'll handily win re-election if they stick to their guns. And if they lose, they lose with a clear conscience. This isn't because they're out there to starve babies and murder pensioners, any more than Democrats are out to deliberately ruin the economy and sell our grandchildren into slavery. The Conservatives are doing what they're doing because they honestly believe that "Those who would give up Liberty for safety deserve neither."


As to whether this is "settled" and "here to stay"... that hasn't been settled. I BELIEVE that we will have SOME form of the ACA, either as-is or modified, as I know of no case ever where government entitlements have been initiated and then repealed. The moment people start getting freebies, some portion of them will find it immediately impossible to live without them. It doesn't matter if it's a healthy guy being given a wheelchair. If it's a government wheelchair, publicly funded propaganda will assault his ears. He'll be told how wonderful it is and how lucky he is to have it. Then he'll sit in it and depend upon it and fail to exercise his own legs until they rot and fall off.

But this current back-and-forth. Despite what my most rabid Leftist friends insist, it's part of the process if that's what's necessary to get discussions moving again. "Pass it, then we'll discuss it" is ridiculous. While I do have sympathy for the Federal workers who are affected  I'm not terribly concerned about the long-term consequences of this action because I've seen 17 of these things, and when the dust clears folks go back to work and back-pay is authorized by Congress. After all, why not? They'd have paid it anyway had they just passed a funding resolution. But the posing does cause unnecessary pain for the affected workers in the short term. That said, it's not remotely possible for either of the involved sides to vilify the other for their insensitivity with any semblance of credibility. They are the pot and the kettle.

I'm a bit more concerned that these things are resolved by conference and respectful conversation, and these players will have none of it. Should anyone want to actually get past the impasse, then you have to talk to them. This is what joint committees are for. The Senate is doing no one a favor by refusing to do so.


Sometimes I'm accused of being a Leftist because I'm opposed to such things as criminalized drugs (it's your body, dude) or gay marriage (none of my business) or war (I'm generally against it), or my tolerance for the views of those who disrespect religion (their rights are equal to mine). When I explain my position to Republicans they try to talk me out of it, but typically wind up understanding my position even when they cannot adopt it. We part in respectful disagreement. That's not always the case, but usually. And the farther "Left" a belief is, and the more subjects someone disagrees with them on, the more likely they are to be negative about it.

On this subject, I'm accused, not of being a Conservative... but specifically of being a Republican (spit it, like a Klansman saying the "N" word). I can count on two hands the socialist Democrats I have met who can separate the two concepts. I can count on one hand those who can do so respectfully. By and large, when discussing politics, (and specifically then) I find them far less pleasant to talk to; quicker to stereotype; quicker to judge; quicker to assign negative motives to others; suckers for logical fallacies; and deplorable analogists. I find that if you disagree with one on one subject, he will typically assume that you not only disagree with him on a plethora of other subjects you've never discussed, but that you are the "enemy" because of those beliefs that he has assigned to you without your confirmation or assent, even if you are otherwise friendly on other topics. This is far more likely to be true of males than females. I say all of this only because I know quite a few of them... enough to characterize my own personal experience. And there's a reason I'm doing that now.

On philosophical grounds, I personally am opposed to having my Liberty and freedom of choice taken from me. This act does do that. It exchanges them for safety. There are many other laws that do that as well. Guess what? I'm philosophically opposed to them, too. But I'm practical, and certainly believe in obeying the law of the land. Even then, I'm not nearly naive enough to imagine that those laws cannot be set and repealed by the People who made them. Nor am I conniving or manipulative enough to misrepresent and hide the contents of a law in order to ram it down the throats of an unwilling populace.

When I say I want Liberty, I do not mean that I do not want affordable healthcare. This is one of those logical fallacies the rabid Leftists are prone to... the false dichotomy. They use it so often it's really expected. "If you don't want my piece of environmental legislation, you want polluted rivers!" Jame Carville took it to new heights in the early 90s when he accused Republicans of actually wanting to starve babies. You have Carville to thank for the fact that as a tactic, it became laughably cartoonish, and it still is. In fact, I do want exactly affordable healthcare, not mandatory pre-payment posing as "insurance". I think there are better ways to get it. I also want myself and and others of like mind to have the economic and political empowerment to purchase it or not, as they desire. It is not my intent to tell you what to do or how to do it when you are a grown adult in charge of your own body and your own family. Today that freedom has been stolen from a good number of Americans. Tomorrow it will be more. By virtue of the fact that someone else has a financial interest in your care, you will eventually be told what to eat, what to drink, and how to spend your illusory "free time".

It is also my intent, fervently pursued, to be charitable. I believe that others have a natural tendency to be charitable as well. I believe that if both Democrats and Republicans alike would stop being so all-fired stubborn, and actually look around themselves with an objective eye, they would come to the same conclusion. And I'm talking to you now. You ALL believe yourselves to be charitable. The problem is, you think everyone ELSE is selfish. Imagine that... every single INDIVIDUAL one of you is charitable, but everyone ELSE is selfish. You've been taught that other people are self-centered, so they must be forced to do what is right. You're taught that the Government will enforce what those horrible people won't do for themselves. Sure... you know better, but they're idiots. Of course, it's not taught in those words, but that's the lesson. And if you elect some government overseer, then you've done your part! Kayn Aynhoreh! The skies will clear, the seas will part! All will be well! And you can truly join the ranks of the selfish without remorse because you're a taxpayer and you're entitled. And you've been lied to by your idols, and you're a chump.

Because you can't be the only one and part of a like-minded mass. Most people would rather be successful and pull their own weight than depend on the dole. And they would gladly help someone else when presented the opportunity rather than let faceless strangers do it, because they know what it's like to need the help, and to get it in a fashion whereby they overcome that need, so it's not strung out into an endless dependency. And I know they would because I've been there. And I've helped other people do it. And I've seen them do the same. And I'm so very sorry for you if you haven't, because it's wonderful. And the only way to know for a fact that this is true is to stop saying "someone should". Stop saying "the government should" and say "I should. I can. I will." And then do it. And if you say you've done it, and you're still saying "government! government! government!" then I strongly suspect you're a fucking liar.

So when I say I want people to be independent and exercise Liberty to its fullest extent, understand that there is not one iota of mean, selfish, dastardly intent there. And I do not believe that people, be they on the Left or Right, get into public service because they're out to intentionally harm innocents. Nevertheless, they believe that other people do. And what's worse, they act on that belief. It's not just factually wrong: it's dangerous. It's divisive. It is this that keeps people from talking and understanding one another's point of view. It is this that causes them to deliberately lie and scheme to pass legislation rather than to work together on mutually acceptable solutions. This is the most polarized Congress ever, and it's because of exactly that... stupid... attitude.

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