December 2010 Archives

    The U.S. Census Bureau reported that a record 50.7 million Americans--16.7% of the population--were uninsured in 2009. According to the Kaiser Family Foundation's report on Medicaid and the uninsured, in 2004, at which time when 44 million Americans were reported to be uninsured, uncompensated care was estimated to be $40.7 billion. Today that cost has likely doubled.
      The cost for medical treatment for the uninsured is borne by all of us, as taxpayers through  Medicaid and by additional, pass-through assessments imposed by insurers on the healthcare insurance plans of those of us who have coverage.

      Despite this reality, two United States District Judges, Henry Hudson and Roger Vinson, have ruled that the healthcare coverage mandate was unconstitutional because Congress, based upon their narrow interpretation of the interstate commerce class, cannot regulate what they deemed to be purely passive economic activity.
     In Commonwealth of Virginia v. Sebelius, Judge Hudson explicitly stated that, "At its core, this dispute is not simply about regulating the business of insurance - or crafting a scheme of universal health insurance coverage- it's about an individual's right to choose to participate." 

      To arrive at this extraordinary conclusion, Judge Hudson failed to objectively apply the "rational basis" scrutiny test that federal courts have historically used to review the underlying authority of Congress to enact legislation under Article I of the Constitution. Judge Hudson accomplished this feat by verbal legerdemain: He contended that in ruling on the federal government's earlier motion to dismiss, "the Court recognized that the Secretary's application of the Commerce Clause and the General Welfare Clause appeared to extend beyond existing constitutional precedent..."

        Judge Hudson then proceeded to distinguish the instant case before him from the broad swath of Supreme Court precedent that, since the advent of the New Deal, has upheld the power of Congress to regulate a wide array of private economic activity  based upon of its power to regulate interstate commerce. The 1964 Civil Rights Act - that outlawed racial  segregation - was expressly based upon that constitutional grant of authority to the Congress.
      Judge Hudson next turned his attention to a favorite target of right-wing jurists: Article I, section 8, clause 18, that expressly permits Congress to "make all laws Necessary and Proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States..." This clause, which has also been described as the "elastic clause," enables Congress to enact legislation for the "General Welfare"not specifically enumerated .

          Judge Hudson's reasoning was a perfect non-sequitur: "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution." 
       In his decision, Judge Hudson denies that Congress has authority, independent of its power to regulate commerce, under the Necessary and Proper clause. If his holding is subsequently affirmed by the five equally reactionary members of the Roberts Court, the Constitution, as a document, will no longer be interpreted  as a flexible, evolving instrument that can be adapted to ever-changing and evolving conditions far beyond those envisioned or anticipated by the Founding Fathers

      In a similar vein, in State of Florida v. United States Department of Health and Human Services, Judge Vinson essentially echoed his right-wing, Republican-appointed colleague's holding. In a sweeping and bizarre decision, Vinson held that  "based solely on a plain reading of the Act itself (and a commonsense interpretation of the word "activity" and its absence), I must agree with the plaintiffs' contention that the individual mandate regulates inactivity. Section 1501states in relevant part: 'If an applicable individual fails to [buy health insurance],there is hereby imposed a penalty.' ' By its very own terms, therefore, the statute applies to a person who does not buy the government -approved insurance; that is a person who 'fails' to act pursuant to the congressional dictate.'"

      Vinson further warned about the slippery-slope of a "too expansive" [from his ideological perspective] reading of the commerce clause: "The important distinction is that 'economic decisions'' are a much broader and far-reaching category than are 'activities that substantially affect interstate commerce.' While the latter necessarily encompasses the first, the reverse is not true. 'Economic' cannot be equated to 'commerce.' And 'decisions' cannot be equated to 'activities.' Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is 'economic activity.' There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes."
     Lastly, Judge Vinson  violated of the cannons of statutory construction and the long-standing rule of judicial restraint that requires judges, when setting aside legislative enactments that they they deem to be repugnant to a specific constitutional clause, need to confine the effects of their ruling to the narrowest possible provisions of the statute challenged and allow all other provisions to survive. By contrast, Judge Vinson - in a remarkable burst of judicial activism - denied severability and held that the entire act must be set aside. .

       An increasingly rigid and narrow interpretation of the text of the constitution will do for constitutional jurisprudence what fundamentalist sects, given their literal interpretation of the King James Bible, have done for the ability of Christian doctrine to evolve in the face of new, unanticipated challenges: render it obsolete and irrelevant. The harm to all of us as citizens, however, will be far greater. 

       A jurisprudence rooted in 18th century notions of individual rights and Adam Smith's economics will not help to create public policies for the 21st century. Rather, if affirmed, it will signal our continued descent.  If Dickens' observation that "the law is a ass" is not to be confirmed, lawyers and judges will have to sharpen their analytical tools and put aside their ideological biases. 

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A Christmas Message: A Time For Hope And Justice?

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Folio 27r from the Lindisfarne Gospels contain...

Folio 27r from the Lindisfarne Gospels contains the incipit Liber generationis of the Gospel of Matthew. (Photo credit: Wikipedia)

    In the Western World, Christmas - spurred on by commercial interests - is now defined as  an occasion for frenzied buying and gift-giving. It is not therefore surprising that, in the midst of the whirl of "conspicuous consumption" that has become the hallmark of the season, the meaning of Christmas has been all but forgotten and obscured.

     Since the beginning of the Christian era, Christmas has been celebrated in the liturgical calendar as the beginning of the promise that was fulfilled by the Resurrection, which is solemnized on Eastern Sunday. According to Gospel narratives, Christ was born into the world to redeem mankind and to rekindle hope. His Sermon on the Mount remains one of the great clarion calls to social justice:

"Now when Jesus saw the crowds, he went up on a mountainside and sat down. His disciples came to him, and he began to teach them. He said: Blessed are the poor in spirit,  for theirs is the kingdom of heaven. Blessed are those who mourn, for they will be comforted. Blessed are the meek,   for they will inherit the earth. Blessed are those who hunger and thirst for righteousness, for they will be filled. Blessed are the merciful,  for they will be shown mercy. Blessed are the pure in heart,  for they will see God. Blessed are the peacemakers, for they will be called children of God. Blessed are those who are persecuted because of righteousness, for theirs is the kingdom of heaven..."

    The Gospel attributed to Matthew admonishes believers to practice charity:"Be careful not to practice your righteousness in front of others to be seen by them. If you do, you will have no reward from your Father in heaven." Christ warns against the accumulation of material goods [Matthew 6:16]: "Do not store up for yourselves treasures on earth, where moths and vermin destroy, and where thieves break in and steal..." [Matthew 6:19]  Matthew also quotes Christ to the effect that "No one can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Money." [Matthew 6:24]. Lastly, Matthew tells us that, "Then Jesus said to his disciples, 'I tell you the truth, it is hard for a rich man to enter the kingdom of heaven. Again I tell you, it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God.'" [Matthew 19:23-24].

    The quotations above - which are recounted in one of the four canonical Gospels - remind us that, in very many respects, Jesus understood his mission to be about more than the advocating for the advancement of one's own self in this world. His concerns - to the extent that they focused on the lives of those living - were firmly rooted in the conviction that each of us needed to love and do justice to one another.    

    In the last two years, as the effects of the Great Recession have become more pronounced and painful, we have too often been summoned to succumb to a message of selfishness and self-pity. Some of those who have been most strident in these calls profess to be committed Christians who, much like the Pharisees recounted in the New Testament, rarely miss an opportunity to profess their piety. To the extent to which we have listened, we have been diminished. Our capacity for hope and our ability to help another are vastly greater than the sum of our fears.

     This season, as millions of Americans are unemployed and suffer the pangs of hunger, homelessness and a lack of medical care, we need to reject the calls from the self-serving defenders of the status-quo and to commit ourselves to work for a better future of all of God's children. The promise of Christmas is the redemption of hope through good works and the power of our example: "'I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.'" [Matthew, 25:40]. It is an opportunity that none of us, whether believer or non-believer, should squander.          

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