US Supremes -- courage in upholding health care

Who would have thunk it?   The Chief Justice of the United States, John G. Roberts -- and not Associate Justice Anthony Kennedy -- proved to be the swing vote in upholding most of Barack Obama's health care initiative.   (Text of decision in National Federation of Independent Business v. Sebelius, and dissents here, PDF.  -- the defendant is Kathleen Sebelius, Secretary of Health and Human Services, or  HHS.) *   This is a huge win for Barack Obama to say the least.    The law was nowhere near his election promise to expand the health insurance federal bureaucrats, civilian and military, to all people; but it does put his opponent Mitt Romney in a corner unless he can explain what he would do to make the program more universal, not less.

Remember that what got most of the GOP so up in arms over the so-called "Obamacare" program (actually, the Affordable Care Act, or ACA) was the concept of mandatory insurance -- that those over a certain income level had to get their own insurance or pay a penalty.    Obama has long insisted the rationale for this is the same for the compulsory auto insurance laws in 46 states and Washington DC:  By spreading the risk across the whole population it reduces premiums for all, including for the "uninsured motorist" provision found in nearly all auto policies in the States -- as well as (incidentally) in all 13 jurisdictions in Canada -- i.e. if a motorist causing an accident is not carrying insurance, the victim will get compensated by the insured's underwriter; and then and his or her hammock, such that it is, will then sue the at-fault motorist for recovery of the payout).

So it is with health insurance.   A universal plan is less expensive across the board than those who can afford to pay -- they end up subsidizing the bare minimum care for uninsured people at far greater cost.

Here's how Roberts' decision, as I read it, breaks down. 26 States and a major lobby group for independent business challenged the law on several grounds.

1.  A long standing principle in the States is if you think a tax ruling is unfair, you must pay the disputed tax first as a "deposit", then sue the government for recovery.   The plaintiffs claimed this concept violated their right to sue.    The Court said that although the ACA characterizes the "pay or play" levy as a penalty and not a tax, the plaintiffs had standing to sue.
2. The plaintiffs claimed the ACA violated the Commerce clause of the Constitution.    The Court didn't quite go as far, but it did point out the Commerce clause was only meant to regulate B2B or B2C transactions -- not to regulate the behaviour of individuals (the old "invisible hand" argument).
3. As for the "necessary and proper" clause, the Court stated Congress couldn't pass the ACA on that ground.
4. In regards to the so-called "penalty" the Court said they were ruling on the basis the penalty is a tax.   (Well, duh!)
5. The penalty is not so high that it would deter people who would rather not have insurance from buying it regardless.    And in any case, Congress has taxing authority, as well as the right to charge different people different levels of tax, permitted under the Sixteenth Amendment since 1913 -- and not just a head tax; therefore, the "penalty" is entirely permissable under the Constitution.    On the principles here and above, the Court ruled 5 to 4 in favour of upholding most of the ACA.

As far as requiring States to expand the range who is eligible for Medicaid (the health insurance program for indigents) under penalty of a reduction or even total elimination of transfer payments from the federal government, the Court said that was unconstitutional.    In this case, the ACA reset the limit for eligibility for Medicaid to a third above the poverty line -- without even consulting the States, many of which are very cash strapped as it is, let alone having to find the money to pay for tens of thousands of new "clients".
(This provision was struck down, 7-2).

In a twist of logic, the Court rebuffed the plaintiff's argument that a violation of "States' Rights" (uh, yeah -- the right to impose segregation) would cause the whole law to collapse.   Instead it has suggested that Ms Sebelius try to rework the Medicaid guidelines to ensure that States don't lose their funding just because they don't want to expand their program for whatever reason -- financial or otherwise.

As for the dissenters -- Scalia, Kennedy, Thomas and Alito -- well, judge the dissents for yourself.

 My sense however is that both sides were wrong on one point -- the Commerce Clause should have been used to sustain the ACA, not the income tax clause.   The logic for that is the same as when the Supremes upheld the civil rights reforms of 1964, segregation impeded people's ability to conduct business within and outside their home states.   In the same way, ensuring people can get the best possible insurance rates, even if they want to shop outside their home states for a better premium, ensures people can get coverage period and not get ripped off simply because they live in a jurisdiction where the number of companies offering coverage in that state is less than the digits on one's hand (bizarre when the States has 1500 health insurance firms, not including the Blue Cross / Blue Shield ™ cooperative).

But at least the Court also upheld the insurance exchange, which should help drive down premiums nationwide.     Nowhere near what Canada has, but it's a start.



*  This case was combined with two other cases -- a cross appeal between Florida and HHS suing each other.

Romney and the "M" word

CNN's religion section notes today that W. Mitt Romney (W for Willard) still has a major hurdle to overcome on the road to the White House.    His religion, Mormonism.

Now personally I can't understand why it should be such a big deal -- who should honestly care what one's belief system (or lack thereof) is just as long as they can do the job?   (I said as much last December.)   But it's the United States, and the Gallup group finds that at this particular moment in time Romney may be in trouble, because 18% of Americans think being a Mormon should be something that disqualifies an otherwise competent person for any public office.    Much more frightening -- that's the same percentage as in 1967 when Mitt's father, George, was running for the GOP nomination as Prez (the nod eventually went to "Dick" Nixon).

The battle won't be for Democrats or Republicans who would have made up their minds by now anyway.   It's the sea of independents who, knowing as much as they do about the LDS church (whether that info is right or wrong), may decide to go with -- pardon the expression -- the devil they know; in other words, Barack Obama may not be their kind of believer; but they'll more likely believe Obama's credentials as a Christian, than Romney's good faith which many believe is not even a Christian one no matter how Romney protests that it is such.

If only one of the Osmonds were running for President -- Donny, Marie, any of them ... then there wouldn't be this debate.   Sad but true.

As I said and say again, keep religion out of it.    The States may have marginally improved over the last four years but it is nowhere near out of its funk yet.    Stick to the real issues.

Dalton gets his way ... at what price?

Call me nuts, but if there's one thing I don't like about minority governments (also called a "hung legislature" in some other democracies) is that they often rule as if they have a majority.   Case in point -- Queen's Park finally passed the 2012 Ontario budget but only after a weeks long game of chicken.    With so many underemployed, welfare payments that are an insult (but in some cases are actually better than the jobs out there), and so many other problems from a lack of will to have a real power generation policy to sustaining fish and wildlife resources for the long term, it's no wonder why people are fed up.

Overall Dalton McGuinty has been a competent ruler -- at least he was during his first two terms.   He however like so many both left and right are prime examples of why a third term is exploitative -- that is, exploiting our good nature.    Two terms should be enough -- majority or minority.

As for the budget ... it's nothing to write home about, even if the top tax bracket is now 48½% instead of 46½%.

Get with the program ... um, what should we call Catholic bishops these days?

So the Ontario Legislature passed a bill that allows "Gay-Straight Alliances" in all schools that receive public funding.   That's both the non-sectarian schools and the Catholic (Roman or Eastern) schools.   The wording of "Bill 13" (not sure yet what numbering it will have in the 2012 statutes) indicates that while private schools just might be able to choose to skirt the "GSA" title for such anti-discrimination groups, the headmasters and headmistresses of those schools will have an obligation to investigate and discipline discrimination and sexual harrassment against LGBT students and faculty just as there is such a requirement in publicly funded schools.

Oddly, and not surprisingly, the Catholic bishops have raised a stink about this.    They suggest that having such groups would actually encourage "illicit" behaviour amongst people who ought to remain "celibate."   It might even make straight people gay.

Seriously?    I have mentioned this before, but §2358 of the Catholic Catechism is very clear on this point.   While the relevant portion of the charter does indeed call on gays and lesbians (as well as any unmarried person as discussed in the 23 sections article on chastity) to be celibate, it also says something else about discrimination that is very crucial about how we should treat those who are in the so-called "not that there's anything wrong with it" camp..    Here's the actual text, from the Holy See's website * word for word:

The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition.

Wow.   Guess they skipped that one in seminary.   And I guess they also skipped the section (§ 2356) about rape -- all kinds of rape (including the -- yes -- abuse of minors):

Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act. Graver still is the rape of children committed by parents (incest) or those responsible for the education of the children entrusted to them.

Double wow.

The fact remains, there have always been LGBT students in Catholic schools as well as LGBT teachers.    There were when I went to high school -- I knew many who were openly so.  There always will be.   They mostly likely figured out they were gay or lesbian when they were very young but didn't yet know the words for it.   Like, between 5 and 10 years old.

If the bishops want to run the schools their way, then they have to call for the end of public funding of their schools.    As part of the publicly funded system, Catholic Boards must accept that they're subject to the province's Human Rights Code and other supporting legislation.   Bottom line, one can say that the behaviour is wrong, but it cannot compel that belief on students who probably wouldn't be persuaded in any case.

If the "seamless web of life" doctrine (which I personally do believe in) means anything, it includes among other things these two things:    One, if the disclosure is in confidence that I will protect that until he or she is ready to "come out" and I will support him or her going forward in every way possible; and two, standing up and expressing openly that discrimination is wrong, that I and other like minded people will not stand for our friends and colleagues being so bullied..   Period.

In other words if someone discloses to me -- either privately or openly -- that he or she is part of the LGBT community, that I should treat him or her no better or worse than anyone else.   What is wrong with that, for heaven's sake?

If I may borrow a catchphrase from right winger Bill O'Reilly, the bishops are, respectfully, pinheads.

Get with the program guys.   Most of the laity actually gets it.    Both parents and the younger people in their charge do also.   It's time you did as well.

******

* For the record, the Holy See (the Pope and his inner cabal) and Vatican City (also headed by the pope but in fact run by a Cardinal who is the de facto Governor of the compound) are not one and the same but in fact distinct personalities in international law.   Ambassadors are accredited to the See, not Vatican City (a custom going back many centuries); conversely, the "Apostolic Nuncios" (the church's ambassadors) represent the Holy See, not Vatican City.   The See runs the church, while Vatican City runs the administrative and civil aspects of the territory (and allows the See to represent its interests).   It may be splitting hairs, but it's also worth pointing out that for the most part the Vatican's domestic legislation is nearly identical to that of Italy's.   That presumably includes, at least on paper, a ban on sexual harrassment or abuse for whatever reason.   At least, one would hope so.