The Great Debate

Americans believe in second chances. The oral arguments before the Supreme Court last week were a rare opportunity to dispassionately re-examine the divisive healthcare debate of two years ago. What happens if, after the smoke clears, we get a second chance at healthcare reform?

We’ve long known that healthcare will be a central theme in the 2012 presidential contest. The High Court’s deliberations and June decision only reinforce that reality for President Obama and Governor Romney.

Unlike with the Patient Protection and Affordable Care Act (PPACA), the constitutionality of Governor Romney’s Massachusetts law has never been seriously questioned. States, not the federal government, have police powers, allowing them to require purchases (car insurance, taxes and licensure) and to pass wide-ranging public health laws and public safety laws. The Bay State law enjoys broad popular support.

In contrast, the case before the Supreme Court was brought by the majority of states. Regardless of what the Court decides, the PPACA will continue to polarize the country.

President Obama may cite Romney’s Massachusetts reform as inspiring his efforts, but there are profound differences in the size, reach and financing of the two laws. Elected just six months after the law’s passage, Romney’s successor, Democratic Governor Deval Patrick, has obscured some of those differences by taking a big government approach to implementation.

The fate of universal healthcare coverage that the United States has been trying to achieve for over 100 years may boil down to broccoli.

The broccoli argument is simple and was frequently referred to in the recent Supreme Court arguments: If the government can require people to buy health insurance, why couldn’t it require people to buy broccoli, which also enhances people’s health? This question, at the heart of the conservative objection to the individual mandate to buy health insurance, illustrates the so-called limiting principle the Supreme Court must rule on: Under the Commerce Clause, does Congress have the constitutional power to compel people to act, in ways they might object to, when their inaction can harm others?

The High Court never got clear on why health insurance is not like broccoli and can thus be constitutionally regulated. There are two important differences that inform the principle for limiting congressional power to compel people to purchase goods and services.

By Zephyr Teachout
The views expressed are her own.

In the mid-1990s, Arizona voters faced a pretty normal problem: their government was corrupt. Legislators were thinking about wealthy donors, not their constituents. Some of those donors were giving money legally (through campaign contributions), and some illegally (through bribes—think AZScam). But whether illegal or legal, the problem was the same: the elected officials had their minds on the sources of cash, instead of the problems of the state. It wasn’t good for democracy, since candidates without a lot of wealthy friends just weren’t going to run for office.

Arizona voters decided to push for public financing of elections. But they worried that candidates might not use the public financing because the amounts provided—for example, around $15,000 for legislature races—could come up short. Would it be enough if a self-financed candidate spent all his money, or the Chamber of Commerce unleashed a flood of attack ads? Candidates might get cold feet; instead of opting into public funding, they’d choose to raise money the old fashioned way, calling rich people who knew lots of other rich people, and telling them whatever they needed to hear.

So Arizona had two choices. It could pass a law to give the hypothetical nervous candidate a high default lump sum of public funding for her campaign, insurance against a big money dump. Or it could pass a law that gave the nervous candidate extra funding if the feared event happened: if the rich candidate or the Chamber of Commerce spent over a certain set amount she’d get an equal amount to be able to fight back. Arizona chose the second option—why use state money when it wasn’t needed? After a threshold, a publicly funded candidate was automatically given an additional $1 for every $1 spent by the self-financed candidate or attacking outside groups. The law didn’t prohibit anyone from spending money. And it was automatic, so it didn’t discriminate on the basis of any ideology.

The following is a guest post by Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. The opinions expressed are his own.

If you followed Elena Kagan’s performance at her Supreme Court nomination hearing this week, you probably didn’t learn much that you didn’t already know. Yes she’s engaging, knows the law backward and forward, and can rattle off clever one-liners—Jews go to Chinese restaurants on Christmas!—but we still don’t know how she views the Constitution or what she thinks about various developments in constitutional jurisprudence.

In short, the hearings this week were plenty more interesting than Sonia Sotomayor’s cramped and wooden performance last year, but still we can only infer the nominee’s judicial philosophy from admission that she’s a “lifelong Democrat” with “largely progressive” views. Shocking!

– Paul Sousa is co-founder of the non-profit GLBT rights organization, Join The Impact MA, which puts on grassroots events in the metro Boston area.  Paul is also the founder and president of Equal Rep, a Boston based organization that focuses on rapid online mobilization to lobby for the appointment or election of highly qualified openly GLBT politicians.  The views expressed are his own. –

Supreme Court Justice David Souter is planning to retire at the end of the current Supreme Court term after 19 years on the bench. The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.

President Obama recently stated, “the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart–the empathy–to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old–and that’s the criteria by which I’ll be selecting my judges.”