Silliness From Wall Street Journal: Editorial Demands Kagan Recuse Herself From Healthcare Litigation

A Wall Street Journal editorial demands that Elena Kagan recuse herself from lawsuits challenging the constitutionality of the healthcare reform legislation. The editors, however, lack a legal basis to demand that Kagan recuse herself.

The Senate cannot make this demand because this would violate the separation of powers. And while federal law might require that she recuse herself from cases in which she was directly involved as Solicitor General, she has already promised not to sit on those cases if she is confirmed.

The Wall Street Journal speculates that Kagan probably offered an opinion on the legality of the healthcare statute -- but, of course, the editors cannot prove this. Lacking any factual basis to argue for recusal, the editors argue that Kagan should recuse herself from cases challenging the legislation because they disagree with her answer to questions regarding the Commerce Clause (which is central to the constitutional issue).

Although Kagan's statements reflect current Supreme Court doctrine, the Wall Street Journal editors accuse her of incorrectly supporting an expansive view of the commerce power. Because they disagree with an expansive view of the Commerce Clause, they believe she should recuse herself from the healthcare litigation if it reaches the Court. According to the editors, her view (with which they disagree) proves she is partial:

We also think there are grounds for recusal based on her response during her Senate hearings on the substance of the state legal challenge. The Florida case boils down to whether Congress can compel individuals to buy health insurance under the Commerce Clause. Ms. Kagan danced around the history of Commerce Clause jurisprudence, but in one response to Senator Coburn she did betray a bias for a very expansive reading of Congress's power.

The Commerce Clause has "been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce," she said, "but it's also been applied to anything that would substantially affect interstate commerce." Anything? This is the core question in the Florida case. If she already believes that the Commerce Clause justifies anything that substantially affects interstate commerce, then she has all but prejudged the individual mandate question.

This is a baseless argument. In US v Lopez, one of the most important cases on the Commerce Clause, the Court held that Congress could "regulate those activities having a substantial relation to interstate commerce . . . i.e., those activities that substantially affect interstate commerce" (emphasis added). This is essentially what Kagan stated during the hearings.

While language in some cases suggests that "activities" only include "economic" activity, the Court has not indicated that this is a requirement. In Gonzales v. Raich, for example, the Court upheld enforcement of the Controlled Substances Act against an individual who consumed homegrown marijuana for medicinal purposes. The individual did not obtain marijuana on the open market. Nevertheless, the Court held that in the aggregate, homegrown marijuana could have a substantial effect on the market for marijuana (making it more available -- contrary to the purpose of the federal statute). Justice Scalia concurred and argued that so long as the activity being regulated is part of a broader statute dealing with interstate commerce, then Congress can regulate the activity pursuant to its Commerce Clause authority. Even one of the most conservative justices has embraced Kagan's view of the Commerce Clause.

The Wall Street Journal editors' demand for Kagan to recuse herself is blatantly political and without merit. Finally, it seems like the editors have conceded the point that the mandate has a substantial relation to interstate commerce. Perhaps the Supreme Court will agree.

UPDATE: Media Matters has published an extensive essay that criticizes the Wall Street Journal editorial.

UPDATE II: Think Progress also has a good article on this subject.

"Healthcare Lite": Does The White House Have a Fallback Position?

According to the Wall Street Journal, the White House has prepared a scaled-down healthcare reform package that would accomplish far less than the Obama administration's current proposal. Ezra Klein of the Washington Post, however, says that this is not true.

Klein chides the Wall Street Journal for pushing the idea that the White House is considering "health-care lite." Klein, however, concedes that since August, the White House has debated the merits of a lighter reform package.

According to Klein, Rahm Emanuel pushed the idea of aiming low, believing that comprehensive reform either could not pass or that it would cost Democrats votes in the midterm elections. The Wall Street Journal also reports that Emanuel pushed a smaller package, but the article states that he did not design the alternative policy. Klein says that Emanuel pushed the idea again after Scott Brown won the Massachusetts senate race. According to Klein, however, advocates of the comprehensive plan won the debate on each occasion.

The Wall Street Journal article relies on anonymous sources. Klein's does too, but Klein's sources are from within the White House, while the Wall Street Journal does not cite White House sources -- even anonymously -- a factor that for Klein raises suspicion of attempted "sabotage."

Query: Dana Milbank's recent Washington Post article that reads like a personal marketing statement for Rahm Emanuel also states that Emanuel pushed a much smaller reform package. According to Milbank/Emanuel, President Obama's failure to listen to Emanuel was a terrible mistake. Could the Wall Street Journal article represent a last-ditch effort by Emanuel's people to bring attention to healthcare lite?

Update: Klein says that the Wall Street Journal has now updated the article without saying so; the new version drops a quote from an anonymous, senior White House official. But the clever Klein made a screen-capture of the original article.

The GOP's Utter Hypocrisy Regarding Stimulus Funds

Think Progress has a very revealing report on Minnesota Governor Tim Pawlenty's hypocrisy regarding the use of stimulus funds. During a December 2009 interview on Fox News, Pawlenty scoffed at the idea of states using stimulus money to close budget gaps. Pawlenty argued that the stimulus would simply "delay the inevitable for most states." He also said that stimulus funding would represent a "Band-Aid" approach to states' fiscal crises and that states needed to reduce their spending commitments rather than seek federal assistance.

Apparently, Pawlenty has quietly shifted his position. Yesterday, he submitted a proposal to balance Minnesota's budget. Although Pawlenty proposes deep cuts in government spending for needy persons, he also proposes tax cuts for business. Also, nearly 1/3 of the money to close the state budget deficit would come from stimulus funds.

Pawlenty Is Not Alone
Pawlenty is not alone in his stimulus hypocrisy. A Wall Street Journal article lists the names of many Republicans who voted against the stimulus but who lobbied to secure stimulus money for their constituents. In letters supporting their constituents, many of the Republicans stated that the stimulus money would help create jobs. Republicans, however, continue to deny that the stimulus has created jobs.

Rahm Emanuel Tells Liberals To Kiss His Arse

According to the Wall Street Journal, Rahm Emanuel has "shrugged off" liberal opposition to the Senate healthcare bill. Although one liberal senator (Bernie Sanders of Vermont) says he will not vote for the measure, Emanuel says "[t]here are no liberals left to get."

Emanuel's comment indicates that the White House will not lobby for the reinsertion of favored liberal provisions like the public plan and Medicare buy-in. According to many published reports, Emanuel himself instructed Senate Majority Leader Harry Reid to remove the provisions from the bill under the guise of appeasing conservative Democrat Joe Lieberman. But as several commentators have argued, this position undoubtedly reflects the will of the White House, which could certainly explain why President Obama has remained stealth during most of the debates over healthcare reform.

Rahm's statement also declares "victory" against the political Left. He feels that he does not need to negotiate with liberals in Congress because they will not make the critical "mistake" of failing to support the healthcare bill. But Emanuel is forgetting one important thing about recent political events. Liberal members of Congress did not elect President Obama. Instead, liberal voters, along with a coalition of Independents, secured Obama's victory.

By reducing the struggle over healthcare reform to an internal Congressional battle, Emanuel ignores the very activists whose work was instrumental in Obama's election victory. If this behavior continues, Emanuel will probably have to dust off his resume in 2012. Arrogance is very ugly. Good luck!

For the record: I never trusted Emanel or Obama. I still do not.

Update: People have emailed me asking "what do you mean you did not trust Obama?" Here is what I mean.

I did not believe that hype that portrayed Obama as transcending politics. Instead, I viewed him as a politician. Rather than doing things calculated to achieve a liberal transformation of society, Obama would and has done things calculated to achieve his own reelection -- which means doing some things for his base, striving for the middle, and giving monetary prizes to corporate interests.

In the absence of sustained social movement and voter pressure, even liberal-leaning presidents will aim for the center or right. Obama is not different. So, I did not join the liberal mania that portrayed him as a folk hero of leftwing politics. I have written on this many times. See, e.g., here and here. That is what I meant about not trusting Obama.

The Bloggacuda Returns: Sarah Palin and the Problem With "Common Sense"

The Bloggacuda is back with a new (ghostwritten?) op-ed in the Wall Street Journal that laments the prospect of healthcare reform proposed by "the Democrats." Palin's "new" essay offers more distortions and more hypocrisy.



Palin and the Problem of "Common Sense"

Palin describes the Democrats' proposals as resting on the notion that "increased government involvement" can fix the healthcare system. She then contests this view, arguing that:

Common sense tells us that the government's attempts to solve large problems more often create new ones. Common sense also tells us that a top-down, one-size-fits-all plan will not improve the workings of a nationwide health-care system that accounts for one-sixth of our economy. And common sense tells us to be skeptical when President Obama promises that the Democrats' proposals "will provide more stability and security to every American."

Adolph Reed, a Professor of Political Science at the University of Pennsylvania, once said during a lecture that "the problem with common sense is that people use it as an excuse not to read." Apparently, Palin falls into this category. If Palin had actually read the various proposals, she would not have seen a "one-size-fits-all plan." But Palin and other conservatives have consistently resorted to deception when discussing Democrat-sponsored proposals for healthcare reform.



Palin Seemingly Unaware of Insurance Company Bureaucrats

Palin also cannot resist mentioning her infamous death panel distortion, proudly stating that the argument resonated with many Americans. True -- but many of the same people fell for the bogus claim that Saddam Hussein had weapons of mass destruction. That lie cost thousands of lives and hundreds of billions of dollars.



Palin argues that Obama wants to create a nongovernmental bureaucracy to make decisions regarding life and death Medicare treatments. Apparently, the Bloggacuda lives in a parallel universe where insurance company bureaucrats do not already determine the treatments that companies will cover for plan participants. Instead, in Palin's world, doctors and patients make these decisions exclusively. Insurance companies simply pay the bill.



Palin's argument rests on a stunningly inaccurate understanding of the nation's healthcare system. Private bureaucrats already determine what treatments to cover, and doctors who desire reimbursement (i.e., all doctors) comply with those guidelines.



Also, Palin seems to criticize the nongovernmental nature of a proposed Medicare advisory panel, but this objection conflicts with her "more government is bad" narrative. In any event, the advisory group would only "advise" the federal government; any actual changes in Medicare coverage would require the approval of Congress.



Palin Blames Democrats for Expensive Policies That Bush Created

Palin also accuses Democrats of creating the very "waste and inefficiency" and "unwarranted subsidies" that Obama has pledged to cut from Medicare. Palin's argument, however, proves that the "common sense" crowd does not read.



When Obama proposed cutting wasteful subsidies to Medicare providers, he was referring to President Bush's implementation of the privately administered Medicare Advantage program, which costs 13% more than the traditional governmental plan. A Republican -- not a Democrat -- introduced the Medicare subsidies that Obama has promised to cut.



Here's an even more stunning fact: Senator John McCain -- the leader of the McCain/Palin ticket -- also proposed reversing Bush and cutting these subsidies in order to reign in the expense of the program. During the presidential campaign, this proposal had wide bipartisan support. Palin's flawed analysis suggests that she did not pay attention to or did not understand the very issues she faced as a candidate for Vice President.



Palin's Shameful Cherry-Picking of Congressional Budget Office Reports

Palin continues to engage in blatant cherry-picking of data to support her claims. She cites a CBO study that shows the House proposal would add over $200 billion to the deficit over 10 years (but it would also insure 47 million more people). But as the Liberal Values Blog thoroughly details, Palin ignores a CBO study which concludes that tort reform -- something she has embraced as an essential component of healthcare reform -- will not reduce medical costs.



Palin's Contradictory Embrace of "Big Guv'ment"

Finally, while Palin's op-ed decries "big guv'ment," the Bloggacuda wants to expand the reach of the national government. Palin advocates tort reform, which, as I have previously argued, would add a new layer of federal control over the judicial systems in 50 states, constrain jury decisions, and limit the ability of private litigants to seek justice as they deem appropriate.



Palin also favors "giving all individuals the same tax benefits received by those who get coverage through their employers," but the favorable treatment of employer health plans already represents the largest tax expenditure. Palin's proposal would cause an even greater revenue loss and increase the deficit.



Palin also supports replacing Medicare with vouchers, a plan proposed by the conservative Cato Institute. Without the government or other centralized entity to negotiate cheaper costs, the price of health insurance for seniors would likely soar, causing them to exert their political power and demand annual voucher increases. The spending implications are tremendous. On the other hand, a refusal to support higher vouchers would sound a lot like the "rationing" of care, disguised as individual decisionmaking.



Palin's op-ed offers a more thoughtful approach than her previous commentary, but it does not provide any viable solutions to the problems that plague the nation's medical services markets.

Peggy Noonan to Republicans: Let's Play Grown-Up

After hearing conservatives describe Sonia Sotomayor as a dumb racist ideological evil bitch, I am pleased to see a voice of reason emerge from the right. The Wall Street Journal has published an opinion essay by Peggy Noonan that raises many of the problems that I have identified regarding the conservative response to Sotomayor.

This blog has been very sympathetic to the GOP in order to foster open debate. I have written numerous articles criticizing liberals -- even getting cited several times by Glenn Reynolds and many other conservatives. I have defended Michael Steele, George Bush, Sarah Palin, and even Rush Limbaugh from unfair criticism. But I have been unable to validate the "other side" in my response to Republican criticism of Sotomayor. Most of the popular conservative critiques of Sotomayor are inaccurate, deceitful, hypocritical, nasty, and politically suicidal.

As someone who desires a multi-party system, the GOP's recent implosion is disheartening. The country almost has just 1.5 parties at the moment. Unless the Republican Party embraces moderate positions in the shortrun, it will continue to live on the fringe of national politics. Parties have had to adjust historically. The Republican Party was the original home of the "Massachusetts Liberal." The Democrats were the slaveowning confederates. Clearly, historical developments caused the parties to shift in order to survive.

Outside of self-interest, the public deserves reasoned debate about judicial appointments. Personally, I believe that the Framers placed the appointments process in the political branches because they knew that ideology is relevant to judging. Even if they did so for other reasons, by delegating authority over judicial appointments to the President and the Senate, the Framers have created an inherently political process. Yet, both sides of the aisle are feigning a meltdown over the prospect of a nominee having a particular ideological bent. The deceitful shenanigans regarding ideology, not to mention "empathy," are pure distractions.

Most educated individuals have formed some type of awareness and opinion (even if tentative) of the most compelling issues that our nation and the world community face. These are the type of issues the Supreme Court analyzes. The fact that judges have a particular ideological background does not mean that they are closed to debate or to precedent. Instead, it simply means that when they review and apply the law in each case, they will bring their own background to the table, and this will inform passionate debate and possibly outcomes in many instances. If you do not think Scalia or Thomas (or Ginsburg and Stevens) operate this way, you are delusional, deceitful or clueless about the Supreme Court.

Here's a clip from Noonan's essay:

Barring extraordinary revelations, Judge Sotomayor is going to be confirmed. She's going to win. She does not appear to be as liberal or left-wing as others who could have been picked. She seems reminiscent of the justice she will replace, David Souter. She will likely come across in hearings as smart, spirited, a middle-aged woman who's lived a life of grit, determination and American-dream proving.

Republicans can be liberated by the fact that they're outnumbered and likely about to lose. They can step back, breathe in, and use the Sotomayor confirmation hearings to perform a public service: Find out what the future justice thinks and why she thinks it, explain what they think and why they think it, look at the two different philosophies, if that's what they are. Don't make it sparring, make it thinking.

Don't grill and grandstand, summon and inform. Show the respect that expresses equality and the equality that is an expression of respect. Ask and listen, get the logic, explain where you think it wrong. Fill the airwaves with thoughtful exchanges

I concur. Nevertheless, if The Onion is correct, filling the airwaves with "thoughtful exchanges" will lead to a major panic and backlash: Oh, No! It's Making Well-Reasoned Arguments Backed With Facts! Run!

Update: RNC Chair Michael Steele and Republican Senator John Cornyn(of Texas with many Latino voters) have come out condemning conservative attacks on Sotomayor.

Wall Street Journal Has Acute Democrat-Phobia: Opinion Piece Warns of Possible "Liberal Supermajority"

The possibility of a Democratic sweep, including a filibuster-proof Senate, makes the Wall Street Journal's editorial board afraid -- very afraid. In a recent opinion piece, the newspaper examines changes that it believes a Democratic "supermajority" would implement. I have listed some of the policies below, mixing in my own snide editorial comments!



(1) Before getting detailed, the essay warns that a Democratic sweep "would mark the restoration of the activist government that fell out of public favor in the 1970s."

Reaction: Which part of the 1960s should we fear? The enactment of the Voting

Rights Act, legislation banning race, sex, and national origin discrimination in

employment, or laws prohibiting racial discrimination in places of public

accommodation?

(2) Medicare for all. The article points out that sneaky Democrats responded to the political defeat of "Hillarycare" by breaking it down into component parts, like Schip (State Children's Health Insurance Program). A liberal supermajority would "lay the final flagstones on the path to government-run health insurance from cradle to grave."

Reaction: "Government-run" health insurance? This is a mischaracterization of

Obama's health plan. Also, what chutzpah -- criticizing health care for indigent

kids!

(3) Green Revolution

Reaction: Personally, I do not fear having a healthy environment or stronger

efforts to make that a reality. What about you?

(4) "Free Speech and Voting Rights" (yes -- a quote!). Democrats would legislate "same-day" voter registration. "Acorn and the 'community organizer' left" support this. Also, DC residents would have representation in Congress. Plus felons would have the opportunity to vote.

Reaction: I am not sure pure conservatives would oppose enlarging "free speech

and voting rights." These rights strike at the heart of egalitarian democratic

participation. But the WSJ fears political participation by certain classes (felons, DC Democrats, who are largely black), not all. Also, several states -- red, blue, and purple -- now have same-day registration.

(5) "Special-interest potpourri" (my favorite heading in the essay). This section includes a laundry-list of feared policies, such as "intrusive regulation" of the Internet, the trial of "terrorists" in federal courts, watering down of "No Child Left Behind" standards, and the burdensome formation of new rights of action "sprinkled throughout legislation."

Reaction: Isn't No Child Left Behind watered-down by definition because it is

an unfunded mandate? Also, the lack of explicit "rights of actions" in some

federal legislation backfired on Republicans when the Supreme Court struck down

the injunction in the Ohio voter case. I really appreciate irony. Finally, the purpose of a criminal trial is to prosecute "suspected" terrorists (or other types of accused criminals). The assumption of guilt is probably the most loathsome and dangerous aspect of Bush's military tribunals. With all of the talk about "patriotism" we usually hear from conservatives, their willingness to abandon core American principles stated in the Bill of Rights sends a terribly mixed message. Conservative libertarians, however, value those rights. Ron Paul, for example, opposes the Patriot Act.

Good Economic News (for Some): Harvard Alum Donates $125 Million

The Wall Street Journal reports that Hansjorg Wyss, a Harvard alumnus, is donating $125 million to the university in order to establish a biotechnology institute in his name. This is the largest indvidual gift in the school's history. I guess Warren Buffet, Bank of America and JP Morgan Chase aren't the only ones doing well after all.