Essentially Contested America

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.

As the health care reform debate shifts into high gear, we need to make sure that the reformers have the right priorities.  The fundamental issue before us is what is the purpose of our health care system – the health of the American people or the health of the private insurance companies?  Frankly, these two priorities are increasingly at odds with each other.  As Atul Gawande’s celebrated New Yorker piece reminds us, patients are best served, at the lowest cost, in locations where the medical culture is focused on the health of the patient instead of making a profit.  Because private insurance companies are for profit entities, they are institutionally poorly suited to best serve the needs of the patients.  This does not mean that all private health insurance companies are bad, of course, but it does explain why they are fighting the “public option” tooth and nail in this health care reform debate.  Their argument against the public option is that it is unfair to make private insurance companies compete with government provided health care.  Why?   Because the government can provide services at a lower cost so the competition would be unfair.  Are you kidding me?  All this argument proves is that the public option might hurt the private health insurance industry.

Currently the profits of private insurance companies account for 30% of the cost of our health care.  It’s time to face the fundamental question – how much does preserving the outrageous profits of the private health insurance companies matter?  Is it worth sacrificing access to health care at an affordable cost?  That’s really what’s at stake in the “public option” debate, and the answer to the question is obvious.  Interestingly, polls show that almost 80% of the American public supports a public option.  While Americans may distrust the government, they apparently distrust health insurance companies even more.  For the health of the nation, we need the public option.

Rachel Maddow’s interview with Frank Schaeffer deserves wide spread dissemination and consideration.  Both Maddow and Schaeffer should be commended for their courage and insight.

“Rachel Maddow Show: Frank Schaeffer on How Hate Speech Leads to Violent Acts

By Heather Tuesday Jun 02, 2009 10:00am

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Rachel Maddow talks to author of Crazy for God Frank Schaeffer about the murder of Dr. George Tiller. Schaeffer apologized for his and his father’s role in contributing to the death of Dr. George Tiller in his article at The Huffington Post How I (and Other “Pro-Life” Leaders) Contributed to Dr. Tiller’s Murder. From the article:

In the late 1970s my evangelical pro-life leader father Francis Schaeffer and Dr. C. Everett Koop (who soon become Surgeon General in the Reagan administration) went on the road with me taking the documentary antiabortion film series I produced and directed ( Whatever Happened to the Human Race?) to the evangelical public. The series and companion book eventually brought millions of heretofore non-political evangelical Americans into the antiabortion crusade. We personally also got people like Jerry Falwell, Ronald Reagan and countless Republican leaders involved in the “issue.”

In the early 80s my father followed up with a book that sold over a million copies called A Christian Manifesto. In certain passages he advocated force if all other methods for rolling back the abortion ruling of Roe v. Wade failed. He compared America and its legalized abortion to Hitler’s Germany and said that whatever tactics would have been morally justified in removing Hitler would be justified in trying to stop abortion. I said the same thing in a book I wrote (A Time For Anger) that right wing evangelicals made into a best seller. For instance Dr. James Dobson (of the Focus On the Family radio show) gave away over 100,000 copies.

Like many writers of moral/political/religious theories my father and I would have been shocked that someone took us at our word, walked into a Lutheran Church and pulled the trigger on an abortionist. But even if the murderer never read Dad’s or my words we helped create the climate that made this murder likely to happen.

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Angry speech has become the norm in American religion from both the right and the left. Words are spoken which — when taken seriously — lead directly to violence by the unhinged and/or the truly committed.

Schaeffer addressed the hateful rhetoric from those like Bill O’Reilly during the interview and O’Reilly’s unwillingness, unlike Schaeffer, to take responsibility for his words.

Schaeffer: And when you look at what happened to Dr. Tiller, there’s a direct line connecting the rhetoric that I was part of as a young man and this murder. And so people like me are responsible for what we said and what we did and the way we raised the temperature on this debate out of all bounds. And so when O’Reilly talks about the fact that these people of the far left are against Fox or against him or trying to muzzle debate, he’s telling a lie.

I am not a member of the far right. Until I voted for Barack Obama in the last election I was a lifelong Republican and I am still pro-life. I also believe abortion should be legal, but I agree with Barack Obama when he says we ought to find ways to help women, help children, give contraceptives, sex education to lessen the number of abortions. I think abortion is a tragedy. But I also think that pretending that you can call abortion murder and Tiller the baby killer, etc., etc., etc. and that these words don’t have an impact is crazy. So this is what helps unhinge a society, talking like that. And I apologize and I will apologize again. I am sorry for what I did.

I commend Frank Schaeffer for speaking out and bringing some sanity to the conversation and acknowledging how the right has hijacked the religious community for political gain, and just what the consequences of that political decision have been.”

Many conservative pundits condemn those who criticize–even fairly and justly–the United States as “the blame America first crowd.” Not only is this charge generally groundless, but the charge raises an important question about the soul of America.  Are we a nation dedicated to freedom, equality, and community or are we instead a nation dedicated to our superiority over other nations and other peoples?  Texas Republican representative Betty Brown provides a window into the soul of those who brook no criticism of the United States and when there is a clash of values, customs, or religions, these xenophobes insist that the interests of Americans–justified or not–trump the interests of people of other nationalities. A new low in this regard has recently been achieved. Representative Brown quite politely and with apparent sincerely requested that those Chinese Americans, whose first names are difficult for Americans to read, adopt more easily recognizable names. This American conceit pervades many American attitudes toward politically incorrect racial, ethnic, and national  groups. Watch the video and decide for yourself.

Some folks seems surprised that the stimulus package, its infrastructure spending and the high deficits that will come along with them will eventually lead to higher taxes.  Folks ought to be surprised if the spending does not lead to higher taxes.  Indeed, folks ought to hope that the spending does lead to higher taxes as a reminder of who is being aided by much of the spending.  Infrastructure spending is necessary to guarantee that the America we give to the next generation is as prosperous as the America our parents gave us.  Infrastructure is the platform on which we build to make our lives, the lives of those who live in America, and even the lives of those who do not live here better.  As importantly, infrastructure is the often unseen subsidy that allows high earners and even some non-high earners to make life as comfortable as possible for themselves and their children.  That subsidy can be sensibly paid back by higher future taxes, to the extent that a superior infrastructure is a large subsidy for the incomes of future generations.

Simply put, many people who make large salaries in the future will do so because of the wonderful infrastructure that will be built on the back of today’s stimulus and today’s deficits.   Indeed, many people who make large salaries now do so because of the wonderful infrastructure that was built on the back of yesterday’s stimuli and deficits.  Of course, many will claim that this ignores uniquely talented individuals who made it all on their own.  Those many are simply wrong.  An example of the supremely talented individual who did not make it on his own would be a professional athlete who happens to work in a building that has been paid for by taxpayers.  That athlete may well be highly paid because of his talent.  However, the amount of his salary may depend in significant measure on the size of the subsidy that has been given to the athlete’s team through tax breaks or a publicly financed stadium or the infrastructure of the airwaves that allows for lucrative television contracts.   To be clear, Athlete A may get paid much more than Athlete B because of Athlete A’s talent.  However, without the infrastructure, Athlete A’s paycheck might be quite a bit lower.  This story can be played out in nearly every industry, from the trucking industry that relies on our interstate highway system to the direct mail industry that relies on the postal system to many others.   The story plays out in part because starting from scratch rarely requires that one create the infrastructure that leads to profits.  Rather, success often results from plugging into the infrastructure that helps one turn one’s skills into large salaries or profits.  The payment of higher taxes as a recognition that the infrastructure into which one is plugging is superior to the one that would be available without stimulus and infrastructure building that leads to large deficits is reasonable.

Claims that high deficits for today’s projects constitute generational theft are misguided.  If we want to tax ourselves to pay for infrastructure, we are giving future generations a large gift.  Gifting is fine, but the refusal to give a gift is not theft.  Though some may suggest that those who will have to pay for the infrastructure might prefer to keep their money and forgo the infrastructure, history suggests that when infrastructure is properly completed, the investment is worth the price.

The Mexican drug wars threaten potentially devastating consequences for both Mexico and the United States. Fueled by America’s pathological addiction to drugs and guns, the border has become riven with violence and death. The prohibition of drugs has failed even remotely to be effective just as prohibiting alcohol failed even remotely to be effective decades earlier. De-criminalizing drug use takes the profit motive out of the sale of drugs. The attraction of drug dealing is made possible by its illegality. The alternative–regulating and taxing drug production and distribution–is not an inherently attractive prospect; it is simply a better solution than the failed “war” on drugs. Political sanity requires the capacity to appreciate realistic solutions to social problems. Keep drugs illegal is not a realistic solution. How many more devastated lives will it take before American politicians will muster the courage to face the scourge of drugs?  One final note. Integrally tied to the Mexican drug wars is the easy access to sophisticated and deadly firearms. Unless and until Americans develop the determination to impose strong regulations on the manufacture and sale of firearms, the war on drugs will continue to be ineffective. From a practical political perspective, regulating or eliminating guns might require a judicial re-interpretation of the Second Amendment or the Amendment’s repeal. But if that’s what it takes, let’s get on with it. 

The Food and Drug Administration has been taking it on the chin in the courts – and for good reason.  For years, it has been apparent that the FDA process for approving and evaluating drugs is flawed.  Far too many drugs have been approved only to be recalled due to deadly side effects that were uncovered only after the drug’s approval.  This problem has gotten so bad that recently, one of my doctors told me that he waits a year after a new drug is approved by the FDA before he prescribes it.  The doctor said that he waits a year in order to ensure that the drug is safe and find out more about the drug’s side effects.  Removal of approved drugs from the market is surely embarassing to FDA officials, but it is profoundly disturbing to those of us who are potential users of those drugs.   It is also evidence that things are not working right at the FDA.  Maybe the drug industry has too much power, and maybe the agency has become too politicized.

In two recent high profile cases, courts have confirmed that the FDA’s decision making process is problematic.  In Wyeth v. Levine, the United States Supreme Court upheld a state court judgment against a leading drug company and in favor of a patient who lost her arm because her doctor used the risky “IV push” method to administer a drug to her.  Wyeth sold the medication with a label did not warn against using the IV push method.  The SCOTUS rejected the company’s argument that the claim was preempted by the FDA’s approval of its label.  Under the Bush administration, the FDA had changed its regulation to provide that “FDA approval preempts contrary or conflicting state law.”  However, the Court held that the new regulation had no authority because it was contrary to the legislative history of the Food and Drug Act, because the FDA had finalized the regulation without giving states or interested parties any opportunity to comment on the change, and because the FDA had failed to provide any reasoned explanation for overturning its long standing policy of non-preemption.  Why would the FDA unilaterally act to preempt state tort claims against drug companies?  It doesn’t take a rocket scientist to figure out that the Bush administration FDA wanted to protect drug companies from lawsuits regardless of the cost to public health.

This week, a New York federal district judge overturned an FDA regulation prohibiting girls under the age of 18 from purchasing the controversial “morning after” pill without a prescription.  The court held that the FDA’s rule was entirely unsupported by scientific evidence, and that there was strong evidence that the rule was based not on science, but on politics.  Why would the Bush administration FDA want to raise the age limit for girls to buy this form of contraception without a prescription?  The “morning after” pill is a hot button issue in the conservative “right to life” movement, a key constituency of President Bush.

We deserve a government that works, and a Food and Drug Administration that bases its policies on protecting our health, not protecting drug companies or religious principles.  Thank goodness our courts are doing what they can to make the FDA accountable for its shoddy performance.

President elect Barack Obama’s appointments to cabinet positions give us a sense of what he may be like as President, and what policies he may pursue.  The official who best reflects the President’s over-arching theory of his role in our constitutional structure is the head the Office of Legal Counsel, the agency that advises the president on the legality of his actions.  This week, Obama announced that his nominee for assistant attorney general in charge of the OLC is Professor Dawn Johnsen.  Currently a constitutional law professor at Indiana University, Johnsen worked in the OLC office during the Clinton administration.  Obama’s choice is cause for celebration because Johnsen is an expert on the legality of presidential actions, and the mechanisms for insuring that the president follows the law.

Obama’s choice of Johnsen is important, both symbolically and practically, because it follows eight years of the OLC facilitating George W. Bush’s imperial presidency.  Last month, Vice-President Cheney invoked former President Nixon’s famous statement, “if the president does it, it’s legal” when describing the president’s power during wartime.  Bush’s legal advisors came close to following that adage.  Relying on their theory of the “unitary executive,” Bush OLC officials such as John Yoo advised the President that he had the authority to order torture of suspected terrorists and conduct wiretaps without court authorization even though both practices were expressly prohibited by federal statutes.  Johnsen has been an outspoken critic of both those policies and the go-it-alone cowboy theory of the presidency that lies behind them.

The head of the OLC plays a crucial role in insuring that the President acts constitutionally, within our structure of separation of powers, and not like a monarch who can make decisions regardless of the views of the coordinate branches.  Obama’s choice of Dawn Johnsen to fill that role indicates that as president, he will respect his legislative and judicial partners in the governing of our country.  This is cause for celebration not only for constitutional law professors, but for all of us who believe in the rule of law.

For the second year in a row, the Thomas Jefferson High School for Science and Technology was named the best public high school in the nation by U.S. News and World Report.  Though ranking any high school as the single best in the country is somewhat pointless, it is fairly clear that Jefferson is an exceptional high school where its students get an exceptional education.  However, it is unclear that the high school is public.  The school is administered by the Fairfax County Public Schools System.  However, it uses selective admissions to create its student body.

That a school is administered by a public entity may lead some to conclude that a school is public.  Indeed, one may argue that who pays the bills and who controls a school in the only determinant of whether a school is public or private.  Certainly, that is how most determine whether a college is public or private.  Maybe the same rule applies to schools at all level.

However, historically, the distinction between private schools and public schools has been that private schools choose their students while students (or their parents) choose public schools by moving to or continuing to live in a school’s district.  That might seem to suggest that selective admissions is at odds with public education.  However, some might fairly argue that as long as a student is not denied an education at his neighborhood school creating a county-wide public school with selective admissions that exists separate from the web of neighborhood schools is not inconsistent with public education.  However, they may also concede that the county-wide public school more resembles a private school embedded in a public school system supported by public money than a neighborhood public school.

However, at the end of the day, whether a school resembles a public school or a private school may not matter as long as public school systems realize that their obligation is to provide superb educational experiences to all of their students.  Surely there will always be opportunities for public school systems to create special schools that teach a particular curriculum to students with interests that are off the beaten path.  However, that should not be an excuse to provide subpar neighborhood schools.  Excellence can be achieved in purely public neighborhood schools if such excellence is demanded and rewarded.  The hope is that we as a society will continue to demand excellence through neighborhood schools that are public through and through.  Nonetheless, whatever the structure of the school, Thomas Jefferson High School for Science and Technology deserves all the praise it can stand.