Essentially Contested America

Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

This week, news circulated suggesting that President Barack Obama sent emissaries to attempt to convinced New York Governor David Paterson to exit the 2010 New York gubernatorial race.   I have heard some argue that the president’s attempt is anti-democratic and that the voters of New York should decide who their governor will be.  Of course, all would agree that New Yorkers should elect their governor.  However, given that the president is the de facto head of the Democratic Party, he has an obligation to do what he can to ensure that the person New Yorkers elect is a Democrat and that the person running at the top of the ticket is as strong as possible.  The stakes for the Democratic Party in the 2010 New York election are large.  A weak candidate may weaken turnout and affect down-ticket races.  Given that Sen. Gillibrand is crucial to count to 60 Democrats in the Senate, a strong gubernatorial candidate is important for reasons important to the national Democratic Party and its agenda.  As important is the redistricting that will occur in the wake of the 2010 Census.  The map that a Republican governor would endorse is likely to be far different than the one a Democratic governor would endorse.  Congressional seats may be in the balance.  If these are the concerns that drove Pres. Obama to encourage Paterson (and those who would have challenged Sen. Gillibrand) out of the New York primaries, his actions may be perfectly understandable and somewhat necessary as the head of the party.  Of course, the president may be wrong about the parade of horribles that could follow a Gov. Paterson primary run (and possible win) but that is a very different question than whether he should have gotten involved at all.

This may be an overly saturnine observation, but it seems that the United States is no longer governable–if by “governable” one means implementing the positions that win elections. The current Health Care Reform crisis is one of many such examples, but there are others also. Indeed, it’s a good test case. If we get a bill will it be one that favors the people or the Health Insurance companies? Four out of five congressional committees reported bills including a public option. One would think a public option is a sure thing. Right? Not necessarily. This fiasco turns off even those citizens who for the first time and who turned out en masse to support a candidate for president. How will this president reward them? Bold, courageous action is required, not politics as usual.

It’s been quite a week. I watched folks marching in the Labor Day parade carrying “Health Care Now” signs, and heard an enthusiastic crowd member call out, “Health care yesterday!” I talked to my friend whose husband lost his job about her difficult decision about whether or not to take her son to the doctor for an ear infection since it would cost over $100. I think of my friend who was just diagnosed with cancer. Thank goodness she has health insurance – I can’t bear to think of her having to forego treatment, as so many have who can’t afford it and lack the insurance to pay for it. I think of my friend with the severely disabled daughter who can’t move because after years, she finally got her daughter on state supported health care. I think, maybe relief is finally here for her and the 46 million uninsured in this country.

Yesterday, President Obama said that health care reform is not just an economic issue, it’s a moral issue. I agree. Why do the people who suffer bad luck such as loss of job or severe illness then have the further bad luck of not being able to afford health care? It’s just not fair, and it’s not in this way in any other advanced industrialized nation. Health Care (Reform) Now? I sure hope that it will be here soon.

Ted Kennedy is gone.  Now is the time for Congress to enact meaningful health care reform, including a public option, as a tribute to the “Lion of the Senate.”  Last year, Senator Kennedy referred to health care reform as “the cause of my life.”  This was no exaggeration.  Kennedy ran on the issue of affordable health care in 1962, in his first run for the Senate.  Kennedy was instrumental in the passage of Medicare and Medicaid programs, both controversial programs that faced considerable Republican opposition at the time which have now become highly popular.  In 1980, in his famous “the dream will never die” speech at the Democratic National Convention, Kennedy announced that he would “continue to stand for national health insurance” because “the state of a family’s health should never depend on a family’s wealth.”  There would be no better tribute to a man who gave over 45 years of his life to championing the cause of the poor, the middle class and the disenfranchised, than for Congress to enact health care reform in Ted Kennedy’s name.

There is precedent for enacting major human rights legislation to honor a fallen senatorial comrade.  In 1875, Kennedy’s Bay State predecessor, the great anti-slavery advocate Senator Charles Sumner, lay on his death bed as he pleaded with his Senate colleagues to “enact my civil rights bill.”  Sumner’s colleagues in Congress responded by enacting the 1875 Civil Rights Act as a tribute to his lifelong battle against slavery and on behalf of civil rights.  The 1875 Act prohibited race discrimination in privately owned places of public accommodation.  (Historical note: The Supreme Court struck the 1875 Act down, necessitating the 1964 Civil Rights Act (which also passed with Ted Kennedy’s support)).

Like Sumner, Ted Kennedy worried about his life’s cause while on his death bed. From home, he continued to advocate for health care reform with his staff and colleagues. The week before he died, Kennedy repeated his request to the Massachusetts legislature to authorize the governor to appoint his successor instead of waiting until a special election filled his spot. Ted Kennedy knew that every vote would count in the Senate battle for health care reform.

So, members of Congress, it is up to you to realize Senator Ted Kennedy’s lifelong dream.  He deserves it, and so do we.

One of the odder arguments in the health care debate is that President Obama is having trouble pushing his health care reform agenda through because he has provided general talking points on the legislation rather than a draft bill.  The argument is odd for two reasons.  The first reason is that it suggests that the president would be more successful if he had a specific plan to sell.  This argument ignores the possibility that the congressional forces aligned against health care reform would prefer to have a specific plan to fight rather than a general set of reasonable principles.  Picking apart draft legislation and vowing to vote against it both because it is not perfect and because it is the president’s legislation is a perfect way to delay reform and kill the eventual legislation.  This does not mean that the president will win with his strategy.  However, it does put the onus on Congress to either get him a bill on an issue that the American public has suggested it wants fixed or implicitly admit that Congress cannot get the job done.  The second reason the argument is odd is that providing a list of policies and priorities is the type of limited control a chief executive ought to have over legislation.  The president can veto legislation, but must execute the laws that legislators pass and that he signs.  President Obama’s outline for health care reform incorporates items that need to be in the legislation if it is to avoid a presidential veto.  In addition, his outline also suggets his priorities in executing any legislation that may become law.  This is also reasonable because execution is his area of constitutional responsibility.  These twin functions of his list arguably mark the limit of the president’s constitutional responsibility.  The irony in the argument that President Obama ought to draft legislation and send it to Congress is that he is not the legislator-in-chief and arguably would overstep his proper role in doing so.  This is not to say that it would be improper for him to draft legislation.  Rather, it is to say that Congress would have every legitimate reason to ignore any such draft legislation.

Will Americans sign off on a substantial health care (insurance?) reform or any reform at all? Or will the some institutional forces that prevent progressive reform in any area of American society prevail once again? The “deliberative” debate in August should be the determining actor. I have no idea why anyone-except the insurance companies and other profit mongers parasitically defending the status quo–would want to prevent a significant health care reform bill, especially when in our present circumstances health costs are likely to bankrupt the American economy. However, I am aware that people who should know better will throw the terms “socialism” and “socialized medicine” around blatantly and subteley in different contexts to scare the American people into dreading a government takeover of health care just as the government as police, firefighters, and so forth have taken over public safety. Heaven forbid!(Yes, I know there are those who want these public goods “privatized” also.)  But there is no such animal as “privatization” if that means people and industries being able to operate outside the shadow of government. One doesn’t enter civil society without government. Privatization means enlisting government to skew the playing field in favor of a privileged few and let millions of others suffer unjustified inequality. When will Americans learn, as other western nations, have that health care is too important to leave it in the hands of those who revere greed?  Just one moment, there’s a governmental official at the door waiting to explain to me when I must die.

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim brought by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination in our country which has subordinated racial minorities, Ricci is just the latest in a line of cases where the Court makes it clear that it will apply the highest level of scrutiny to government attempts to remedy that history. What is a city like New Haven to do to attempt to provide more opportunities for upward mobility to government employees of color? Standardizes tests, like that in Ricci, could theoretically be useful to reduce the level of discretion in hiring and promotion decisions. Less discretion should mean less opportunity for race discrimination. Yet given that one of the many issues that plagues communities of color if poor public education, it is not surprising that job and promotion candidates of color don’t score as well on written standardized tests.

After Ricci, cities like New Haven better be sure that the test is valid before they use it, because afterward, it’s too late to discard the results no matter how discriminatory their impact might be. Could cities like New Haven try to remedy the racial disparity by giving extra points on the promotion scale to candidates of color? No way, the Court has made that clear. Theoretically, they could lobby their local government officials for help.  Yet under the current Supreme Court’s jurisprudence, it’s hard to see what those local officials can do, except as Bobby indicates below, hope that candidates of color can “pull themselves up by their bootstraps” and improve their situation on their own.

Regardless of what one thinks of Gov. Sarah Palin, she quit.  Quitting itself is not necessarily problematic if one has a good reason to do so.  It is unclear she has a good reason.  At least three legitimate reasons exist to quit a public office before one’s term has ended.  First, if one’s actions or health appear to make it impossible for the official to do the job the official was elected to do, quitting is legitimate.  Second, if something arises that fundamentally changes the basic agreement an official had with the voters who elected her, quitting is legitimate.  For example, if the official changes parties, quitting is legitimate.  Third, if the electorate appears to want the official to resign, quitting is legitimate.   The official arguably need not resign under any of these circumstances, but quitting under such circumstances is acceptable.

However, if the official quits to pursue some other task, the official ought to explain precisely why she is quitting and ought to be able to move directly to that post-office task that precipitated the resignation.  Spending more time with family in the wake of a scandal, starting a new job at a think tank or going to rehab are all reasonable landing places for officials who quit.  The problem with Gov. Palin is that she simply appears to not want to do the job she was elected to do.  In her press conference, she appeared to say simply that she had better things to do than be governor of Alaska.   Palin’s attempt to tie her decision to quit to her decision to decline to run for a second term and thereby become a lame duck of choice was weak.  Being a lame duck hardly means that one cannot run a state effectively.  Virginia governors can only serve one term.  Of course, it would be nonsensical to suggest that the governor of Virginia could reasonably resign the day after being sworn in if he decides he has something better to do.

It would be interesting to talk to Gov. Palin’s son Track and ask him if, as Palin suggested, he really agreed that his mother should quit.  Let’s hope that Track Palin does not try to follow her lead.  If Track believes that he can resign from the Army and go home as soon as he decides that he will not re-enlist, he will be in for a rude awakening.