ACA and the Merits of Judicial Review

A few years ago I wrote a long quasi-thesis responding to a Jeremy Waldron paper called, “The Core of the Case Against Judicial Review.” As the title suggests, Waldron argues that courts should not have the authority to strike down legislation, i.e. that debates over laws and statutes should be handled within the legislature. My counter-argument, narrowly summarized, was that judicial review is a democratically legitimate process even if it is openly undemocratic.

So as one might expect, Dahlia Lithwick’s piece today in Slate on the Affordable Care Act and judicial review caught my eye. Lithwick poses some intriguing questions in her article, e.g.

We can also discuss whether the judiciary will suffer a decline in public legitimacy as a consequence of all of these ideologically freighted rulings. It seems to me that it will. Reducing a constitutional issue to a simple tally of which presidents appointed which judges serves only to disparage all judges. Perhaps this total fracture of (better word?) the judicial branch over the constitutionality of Obama’s health care law raises a question liberals don’t want to consider: Maybe it’s time to stop offering the courts the last word on whether a law stands or falls.

There are a few different strands to pull apart here: the polarization of the judiciary, the suspicion that judges are not the perfectly unbiased actors our system pretends they are, and finally, the hardcore philosophical question about whether judicial review deserves a place in our democracy.

One line of thought is that much of the skepticism about the hyper-empowerment of judges is actually skepticism about the ability of our legislature to ever stand up to an adverse court ruling. The congressional coalition that passed the ACA mostly got tossed out last November, and if the courts ruled the ACA unconstitutional, it seems unlikely that the Congress would ever pass a “patch” to keep the important parts of the law intact. Even had those members of Congress held onto their seats, the legislative process seems so cumbersome and slow nowadays that it would still be implausible that the Congress would parry an adverse ruling.

The Constitution envisions a legislature that checks the judiciary. One of those checks is the confirmation process, which has become very politicized. The other is the ability of the legislature to modify legislation that is ruled unconstitutional by the courts. But today’s Congress is barely able to slog through the first, much less the second. The result is that court rulings carry an outsize influence – and judges an outsize power – because even though the Congress enjoys a de jure power to change legislation, it is de facto incapable of doing this. Yglesias explains:

…the biggest element of the American political system that hyper-empowers judges actually isn’t our unusually strong judicial review, it’s our unusually cumbersome legislative process. If the Supreme Court strikes down the prevailing statute that attempts to limit corporate influence over elections, we don’t just pass a new law that steers clear of the constitutional issues they raised. We do nothing. And if the Supreme Court issues an interpretation of a statute that makes it extremely difficult for people to in practice enforce their rights, we don’t pass a new law clarifying the rules. We do nothing. That’s because we live in a country whose political system is overwhelmingly biased toward inaction. That, in turn, winds up making every judicial decision higher-stakes than it should be.

The Waldron argument takes quite a hit from from this view. Waldron tells us to bracket our feelings about particular outcomes and to focus on the differences between judicial process and legislative process – consigning rights-based disputes to a popularly elected legislature, he says, is more democratic than consigning them to a panel of nine Harvard/Yale graduates. As a philosopher, one can simply stipulate, as Waldron does, various conditions about the working order of a society in order to make the case against judicial review. But one of the current failures of our system is that there can be no reasonable expectation that legislature will act in the manner that is constitutionally prescribed. That, in turn, makes strong judicial review seem like much more of a problem than it really is; that is, more of a problem than it would be if the legislature were in better working order. So the very problem that motivates Waldron’s argument (the outsize influence of judicial review) is itself an outgrowth of a problem which Waldron stipulates doesn’t exist (the disrepair of our legislature). In that sense, Waldron’s whole argument seems an exercise in hypothetical wishful thinking.

Confused Safety Nets

A nice piece from Yglesias highlights the confused approach of SNAP, and implicitly, many of our safety-net programs:

…American political culture is generally hostile to the idea of improving poor people’s lives by giving them more money. So you wind up with a lot of things like SNAP. Viewed very narrowly as a nutrition program, it’s not that well targeted and it costs more than it needs to. But viewed from the point of view of the overall quality of life of low-income Americans it’s incredibly stingy.

One common retort to this is that the only cause of poverty is not having a lot of money, and that any other claim about how to combat the ills of poverty is really an argument about something else (i.e. an argument most liberals don’t want to be seen having in public). But that mindset tends to breed racism and resentment on the right and political nihilism on the left – none very conducive to effective policy.

To begin to get an idea of what good policy might look like, it is useful to note why existing policy, like SNAP, is bad. Yglesias is right: SNAP doesn’t work because it’s poorly targeted. Either we should give poor people money to alleviate their poverty, or we should give poor people a nutrition program to prevent widespread malnutrition. But SNAP isn’t directly targeted at either, so it fails at both. This is not totally unlike Medicare. We could just give seniors money – a la social security – redeemable for medical services (or Fritos or Perrier or beer or whatever). Instead, we give them medical services, redeemable for nothing.

If we want to provide a safety net to at-risk contingents of our society, then we should do so without a lot of moral posturing about what is a good way to deploy that safety net. Forget medical services, food stamps, vouchers, etc. – just give them money. The key concept is this: “…it is possible to effectuate large increases in the quality of life of poor people while doing extremely little to reduce the quality of life of the rich people.”

Mitt Romney’s Health Care Dilemma

The National Review slams Romney in a piece this morning:

…when conservatives argue that Obamacare is a threat to the economy, to the quality of health care, and to the proper balance between government and citizenry, we do not mean that it should be implemented at the state level. We mean that it should not be implemented at all. And Romney’s health-care federalism is wobbly. The federal government picked up a fifth of the cost of his health-care plan. His justification for the individual mandate also lends itself naturally toward federal imposition of a mandate. He says that the state had to make insurance compulsory to prevent cost shifting, because federal law requires hospitals to treat all comers, insured or not. But if federal law is the source of a national problem, it makes no sense to advocate a state-by-state solution.

Matt Yglesias catches out NR on changing its stance from four years ago, citing NR’s 2007 Romney endorsement editorial. Yglesias observes:

We’ve gone quite suddenly from the fact that Romney can speak with more authority than any other Republican about the pressing issue of health insurance to one in which Romney’s health care record is a dangerous flirtation with policies that threaten the economy and the basic framework of American liberty. If the issue is that NR’s writers have actually changed their mind then they should give some reasons and not just act like Romney’s a scoundrel.

What makes this really disheartening, much past the ideological treachery of publications like the National Review, is that Mitt Romney is the one Republican candidate who, in Ezra Klein’s phrase, has “really accomplished something on the issue.” What Klein’s chart shows is that out of the states from which the 2012 Republican candidates will likely emerge, Massachussetts (Romney’s former state) has the lowest rate of uninsured by a bit. So in just the narrow sense of policy performance, Romney should be bragging to Pawlenty and Rick Perry and Mike Huckabee instead of defending himself against their attacks.

What’s more, public opinion has steadily been in favor of the individual mandate component of the Affordable Care Act, which was one of the central pieces of Romneycare and something that he touted during the 2008 campaign. So in sum, as Governor of Massachusetts, Romney implemented a policy that worked well for his state and that ended up being the template for a nationally popular policy, and yet he is running away from it at full speed.

One has to think that this is a critical moment for Romney. Either he can go on pretending that bringing health insurance to the people of his state was a heinous violation of American liberty that should never have been duplicated on the national level in order to mollify the extreme voices within his party, or he can tell people to cut the crap.

Bin Laden is Dead

From the NYT:

Osama bin Laden, the mastermind of the most devastating attack on American soil in modern times and the most hunted man in the world, was killed in a firefight with United States forces in Pakistan on Sunday, President Obama announced.

In a dramatic late-night appearance in the East Room of the White House, Mr. Obama declared that “justice has been done” as he disclosed that American military and C.I.A. operatives had finally cornered Bin Laden, the Al Qaeda leader who had eluded them for nearly a decade. American officials said Bin Laden resisted and was shot in the head. He was later buried at sea.

But the key questions are these:

Bin Laden’s demise is a defining moment in the American-led fight against terrorism, a symbolic stroke affirming the relentlessness of the pursuit of those who attacked New York and Washington on Sept. 11, 2001. What remains to be seen, however, is whether it galvanizes Bin Laden’s followers by turning him into a martyr or serves as a turning of the page in the war in Afghanistan and gives further impetus to Mr. Obama to bring American troops home.

How much his death will affect Al Qaeda itself remains unclear. For years, as they failed to find him, American leaders have said that he was more symbolically important than operationally significant because he was on the run and hindered in any meaningful leadership role. Yet he remained the most potent face of terrorism around the world, and some of those who played down his role in recent years nonetheless celebrated his death.

A lot of the commentary I heard last night was geared towards claims like, “This marks the end of the war on terror” or “this is a turning point in America’s engagement with terrorism.” Bin Laden’s death certainly has some symbolic meaning in America’s war on terror, but I think the symbolism will, in time, prove more important to the wave of democracy sweeping across the middle east than to America’s mission to defeat terrorism. If in ten or twenty years the majority of middle eastern countries have embraced liberal democracy, bin Laden’s death may be remembered as the beginning of the end of Islamic fundamentalism’s hold on the region. And if not, bin Laden’s death may not be remembered much at all.

That is to say, Americans can cheer bin Laden’s death as a turning point in the war on terror, but the real question is whether this will also be a turning point in the regional embrace of democracy. If so, then we will all really have reason to cheer. And if not, bin Laden’s death will have been nothing more than symbolic.