Nullification and Health Care

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
- The 10th Amendment to the Constitution of the United States America

Congressional Republicans seem to have conceded the field to the Democrats and Obama. The best they could do for their official response to Obama’s Healthcare address was to rudely heckle from the gallery and send an obscure member of Congress who, as a heart surgeon, was sued three time for malpractice. Their proposals in the Senate Finance Committee are being voted down along party lines. Furthermore, Senate Republicans have overplayed their hand. They wrung a number of concessions from Democrats, yet they still won’t support any health care bill. Now the Democrats have concluded they can go it alone, and Senate Republicans will be left on the sidelines.

Republicans elsewhere are not throwing the towel.

On Sept. 11, 2009, in a response to a phone question at the Republican Governors Conference, Gov. Tim Pawlenty (R-Minn) said in that he may invoke the 10th Amendment to block implementation of any health reform signed by Obama. “Depending on what the Federal Government comes out with here, asserting the 10th Amendment may be a viable option. The Governor finished with "I think we can hopefully see a resurgence in claims and maybe even bring up lawsuits if need be." (http://www.startribune.com/politics/state/59009217.html).

On Sept. 13 2009 on ABC news, Gov. Pawlenty backed off of his remarks. On George Stephanoplis, Pawlenty said “…I think the courts have addressed these Tenth Amendment issues, but more in the political sense, in the common sense arena, we need to have a clear understanding of what the federal government does well and what should be reserved to the states.” (http://blogs.abcnews.com/george/2009/09/pawlenty-backs-off-nullification.html).

What makes the Pawlenty story an interesting one, is he is a mainstream politician bringing up an argument that had, up to this point, been limited to the right wing fringe. He did this while being seen the best hope the Republicans have for taking the White House either in 2012 or 2016.

The 10th Amendment is becoming a favorite among conservative activists as a way to circumvent health care reform, and anything else they are afraid of from the Obama Presidency. A quick look at the list of states that have some sort of 10th Amendment sovereignty legislation is sobering. (http://www.tenthamendmentcenter.com/2009/02/23/state-sovereignty-resolutions/). 10th Amendment resolutions have been passed and await Governor Signatures in South Dakota, Alaska, Idaho, and Oklahoma and dozens more are proposed.

But this is a constitutional dead end.

The 10th Amendment was designed to prevent the Federal Government from swallowing up a State, force it out of the Union, or interfere with how it operated within the Union. It was not designed to define the specific powers allocated to either the State or Federal government. (http://caselaw.lp.findlaw.com/data/constitution/amendment10/01.html#t8).

In 1819 Chief Justice John Marshall ruled in McColluch v Maryland that framers had not used the work “expressly” to qualify the powers granted to the Federal Government, ''whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.'' (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=17&invol=316#372).

In short what Marshall said 190 years ago was that as the 10th amendment did not place specific limits to the rights of either the State or the Federal government. What was delegated to each depended upon the proposed law, its fairness, and how it fit in the overall constitution.

But even if the 10th Amendment were interpreted the way Gov Pawlenty (and John C. Calhoun) wanted he would still be wrong when it comes to health care reform. Article 1 Section 8.2 of the Constitution clearly states that [Congress has the power …] to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,

Unless the 10th Amendment group can figure out a way that health care is not a classic case of interstate commerce they have no leg (so to speak) to stand on. To carry Pawlenty’s 10th Amendment argument to its logical conclusion, each state would have to have its own health care system and insurance that was valid only in its own borders.

Over the life of the country opponents of progress have invoked the 10th Amendment at every turn. Whether it was as the basis of nullification in the 1830’s, the New Deal in the 1930’s, Anti-lynching laws in the 1940’s or Civil Rights in the 1960’s, the 10th Amendment has been invoked to stop progress, even though attempts to use the 10th Amendment has been pushed aside by the courts time and time again.

The 10th Amendment does prevent Obama from driving Nebraska from the Union to settle a score with Sen. Chuck Grassley, or to eliminate his “Nay” vote, but it doesn’t at all prevent him from regulating health care.

Conventional Wisdom and Health Care Reform

“You lie!”
- Rep. Joe Wilson (R-SC)

Rep. Joe Wilson (R-SC) joined a long line of South Carolina Congressmen behaving badly. Not since Rep. Preston Brooks beat Sen. Charles Sumner nearly to death on the Senate floor has a South Carolina Congressman gained so much notoriety by a single act. Rep. Wilson seems confident that no one in South Carolina can hurt their political career by insulting a black man. He may be wrong. A poll taken the day after Obama’s speech showed 62% of Wilson’s district disagreed with his action. His opponent raised $750,000 in forty-eight hours. Wilson raised less than half that in the same time frame.

But Wilson also inflicted significant damage to his party.

Nothing better crystallized the debate over health care than watching Wilson heckle Obama. On one hand you had Obama, who was clearly having a good night at the podium, laying out his vision of health care reform in clear, stirring terms. On the other you had someone behaving like a crazy at a town hall meeting in a church basement. The Democrats will use Wilson’s sound bite to paint all Republicans as screaming obstructionist, in the same way the Republicans turned all anti-war Democrats into Cyndi Sheehan.

Obama’s speech not only threw the Republicans off balance, it upset the carefully constructed myths of the pundits. On Sunday you could read Frank Rich in the New York Times as he argued Obama has not been involved enough in the debate over health care. If you put down the paper and watched Bob Shieffer on CBS, you could hear him say that Obama was over exposed and too involved. Listening to conventional wisdom try and decide what the conventional wisdom is, only highlights how superficial the reporting of the debate over health care has been.

The “wise ones” of the media are desperately trying to fit the current situation into a formula they can understand and predict. They have tried to follow time honored rubrics that go back to the 1930’s. In reality their beliefs and rules are really no better or worse than the priests of ancient Rome who read the entrails of slaughtered chickens. The same group of “wise ones” who a month ago told us health reform was dead, is now saying - without any shame in contradiction – that health care reform will be done by November and that the Republicans are in flight.

Conventional Wisdom is by definition short sighted and myopic. So what is the long view that the pundits are missing?

The best analogy for where we are in health care reform is Civil Rights legislation in the 1950’s. The 1957 Civil Rights act was the first Federal civil rights legislation passed since the end of Reconstruction, and was fairly limited in its scope, compared to what was proposed and passed eight years later. As proposed, it would have mandated a sweeping end of Jim Crow and segregation. As passed, it only guaranteed that violations of voting laws would be tried in Federal not State courts.

Liberals were incensed that Majority Leader Lyndon Johnson had given away so much and got so little in return. But Johnson and his opponents understood that once you passed the first piece of legislation – no matter how small - and the sky didn’t fall, it would be easier to pass subsequent more radical legislation. That is why the Southern Senators opposed this legislation so vehemently. They were afraid that if this passed and all the evil things that they predicted would happen if blacks were guaranteed their rights didn’t occur, the dam would burst and the flood of civil rights legislation would sweep their world and power away. It was that fear that brought Strom Thurmond to his feet for 27 hours in the longest filibuster ever by a single Senator.

The opponents of health care reform share the same fear.

They know that any successful reform now will bring greater reforms later. They have already seen this happen. Drug prescription reform set the stage for the current debate. It showed you could effectively reform part of the health system and the world would not end. Opponents fear not what Obama’s reforms will bring now, but what they will make possible in the future.

The demographics prove their point.

The main opponents of health reform are the older voters. Age not race or income is the main indicator of whether someone will support or oppose reforms. The “wise ones” tell us that this leaves Obama vulnerable because young people don’t vote. But in fact young people who do vote remain remarkably loyal to the party of the presidential candidate for whom they cast their first ballot. We see this today. The “twenty something’s” who cast their first vote for Reagan are now the core Republican base.

First-time voters in 2008 will be no different.

They will develop into the most loyal of Democratic voter cohorts. The younger Obama voters believe strongly in a public option and/or single payer health insurance plan. As this group grows and exerts more and more power, it will push for wider reforms. As a result America will in 10 or 15 years wind up with a public option or a single payer plan as part of the health system.

This would make Obama wrong on one point in his health care speeches. He will be the first President to get major health care reforms passed, but he won’t be the last.

Nervous Democrats and Health Care Reform

“… you're missing the main dynamic in the scene, which is how the Democrats are throwing away the game. They've become so used to kowtowing to the Republicans, become so used to knuckling under that even when they have a filibuster proof majority they act as they've got someone's boot on their throat.”

- Comment from an OperaDem reader

My reader expresses the frustration of many of us on the Left. Why do we seem to be always looking for those two or three votes from Republican Senators, whose price seems to be some core portion of the program under discussion? We should be able to ram through whatever we want. In the fight over the stimulus package, direct spending was sacrificed for tax cuts – the price of three Republican votes.

We are seeing it again in the debate on health care reform. Almost from the beginning, Obama seemed cut the public option from his health care proposal in order to gaim the votes of Republicans like Charles Grassley, who responded by repeating the canard about
“Death panels.”


Can anyone imagine LBJ making such weak use of 60 votes? Johnson was able to push through the 1957 Civil Rights act against the opposition of Southern Democrats and some Republicans. Strom Thurmond mounted the longest one-man filibuster in Senate History. But Johnson was not afraid of a filibuster and got it through.

Modern Senate Democrats have a long history of being afraid to wield power. Harry Reid seems cut from the same cloth as Tom Daschle. Daschle couldn’t muster effective opposition to the Bush tax cuts or to the war – even though Bush was a minority President. Reid seems equally unable to gather and guide his troops, despite having a significantly more popular Democrat in the White House.

It appears that Democrats in the Senate are reluctant to look like they are behaving like Republicans. Not so in the House. Speaker Nancy Pelosi is willing to wield power like Tom DeLay. She punishes her enemies and rewards her friends. She is able to keep the Democrats in her chamber in line – even through the summer recess.

But there are factors involved in how the Democrats are behaving.

First there is a significant philosophical gulf between the Democrats in the House of Representatives and the Democrats in the Senate. The Senate is significantly more conservative. Members have to run state wide races and appeal to a wider range of voters. The Senate’s more liberal members tend to be to the Right of the House’s more Liberal members. Even a hard core liberal like Sen. Barbara Boxer is to the right of Rep. Barbara Lee

The Democrats in the House are more unified – both ideologically and through the rules of their chamber. It is no accident that House reported out their proposal sooner than the Senate. It is also no surprise that the proposal is more liberal and matches the desires of the voters. The House was designed to register the waves of public sentiment. But the Founders were terrified by the French Revolution and designed the Senate to put the brakes on public opinion. That is what is happening here.

We also have to remember Democrats don’t have 60 votes in the Senate, they have 58. Two of the 60 are Joe Liebermann and Bernie Sanders. Sanders may defect if the health care proposal is too conservative and Liebermann may defect if it is too liberal. This dynamic gives conservative Democrats more leverage. There is no proposal that will garner all Democratic votes. So Obama needs an insurance policy of a few Republican votes.

The Democrats also struggle with the fact they are a more diverse party than the Republicans. It is easier for the Republicans to march in lockstep simply because there is little diversity of opinion in the Party. The Republicans were able to ram a lot of their proposals through because there was, and is, little philosophical difference between members of each chamber and among themselves. There was not the same gulf between Tom DeLay and Bill Frist as there is between Nancy Pelosi and Harry Reid. Whereas the Republicans are a dull philosophical monotone, the Democrats are a cacophony of opinion. That cacophony makes it hard to sing in harmony.

Unfortunately Obama has been reluctant to get involved. In an effort to avoid the mistakes of Clinton and his health care reform, the President has been content to draw broad outlines and stay out of the nitty-gritty work of creating legislation. By doing that he has denied the reluctant Senate Democrats the needed cover his popularity. If he had pushed hard at the beginning for a public option in his health care reform, few would have been able to say no. But he has stayed on the sideline long enough that his popularity has dwindled. Even though his popularity is high, it is no longer high enough to provide backing for reluctant Democrats.

This leaves Health Care reform in the hands of 58 nervous Democrats. Let’s hope enough of them find the courage to do what is right for the country.

Duet of the Past

"I say in the clearest possible terms...all of this I have had to endure for something that I did not do. …[Victims' relatives ] continue to have my sincere sympathy for the unimaginable loss that they have suffered.”

- Statement from Abdelbaset Ali Mohmed al-Megrahi, the only man convicted of the bombing of Pan Am 103 over Lockerbie Scotland in December of 1988, upon his arrival in Tripoli, Thursday August 20, after his release.

"There is not a day that goes by that I do not feel remorse for what happened that day in My Lai. I feel remorse for the Vietnamese who were killed, for their families, for the American soldiers involved and their families. I am very sorry."

- Former Lt. William L. Calley, Speaking to the Columbus Georgia Kiwanis Club, Wednesday August 18, 2009. These were his first public comments since his conviction for his role in the My Lai massacre in March 1968.

Within a day of each other two voices took us back to the terrors of the past.

Abdelbaset Ali Mohamed al-Megrahi, was the only person convicted for the bombing of Pan Am 103 over Lockerbie Scotland. 259 people on board, and 11 people on the ground were killed. Mr. al-Megrahi , has steadfastly maintained his innocence. He arrived in Tripoli, to a hero’s welcome after being released by Scotland.

Two days earlier, former Lt. William L. Calley, spoke at a meeting of the local Kiwanis club in Columbus, Georgia where he lives. He spoke about My Lai, and to everyone’s surprise, he answered every question asked. In March of 1968, then Lt. Calley, lead US troops into the village of My Lai on a search and destroy mission. Even though they had not come under enemy fire, Calley’s troops opened up on the villagers, killing over 500 men, women and children. He was convicted in 1971 and sentenced to life in prison. President Nixon commuted his sentence, and he served 3 years under house arrest.

Time marches on. The Lockerbie bomber is ill and frail. The young Lt. Calley of memory has turned into an owlish looking man, in his late 60’s with thick glasses and haunted eyes. One man has accepted responsibility and the other hasn’t. It is clear from his remarks that Calley is burdened by his actions. It is clear from his remarks that al-Megrahi is not.

Most people have forgotten about both incidents. The human and spiritual sacrifice made by the killers and killed changed nothing. We lost in Viet Nam, the carnage in My Lai having made little difference one way or the other. Despite Pan Am 103 falling from the sky the mid-east remains a stalemate with thousand more having died. Both incidents are faded memories of people of certain generations.

But both incidents have similar lessons to teach us today.

Both eras are in danger of being wrapped up in a warm fuzzy afterglow. A movie about Woodstock is coming out, which may whitewash away the darker elements that people at that time were trying to break away from. Like the musical Grease, and the TV show Happy Days, gave us a dreamy view of the fifties without segregation, McCarthyism and the cold war, so the Woodstock movie may wash away Viet Nam, Detroit, Newark, My Lai, JFK, RFK and MLK.

We look at 1988 as the golden era of Pax Americana. It was also the era of “Greed is Good,” which is the direct ancestor of today’s economic meltdown. 21 years later innocents are still being murdered over the need of a Palestinian homeland.

By wrapping these eras up in warm and fuzzy memories, we lose the warnings that they held for us. My Lai warned us of Blackwater. In both cases a group of armed men were put in a high pressure situation, fighting combatants who were both deadly and hard to identify. In those situations it is easy to see everyone as your enemy and every enemy as a target and not a person.

We also miss the lesson of what happens when a people become angry and powerless. The same anger and powerless feelings that planted a bomb in Pan Am 103 was also at the controls of four different jets on 9/11/2001. Those feelings are at the wheel of every truck bomb, and in the heart of every person who wears a jacket of explosives in a crowded market. Until that anger is addressed and the feeling powerlessness is resolved, people will still bomb innocents.

The final sad lesson is how numb we become to these horrors. I don’t think we are numb because bigger more awful things have happened, but because of the large number of smaller atrocities of over a long period of time. We have become numb to the human carnage, the widows and widowers, the orphans, the wounded.

We click past or flip the page on the latest truck bomb or suicide bomber. The story is almost a boiler plate, only changing the city, country and number of victims. It has become “normal” and we don’t notice it any more.

So the bombers climb in their trucks, and young contractors, and depersonalize the people they are facing, and gun them down for no apparent reason. My Lai warned of Blackwater, and Pan Am warned us of 9/11.

What do Blackwater and 9/11 warn us of?