Balkinization: Does the Health bill vindicate the Constitution?

Comments:

Professor Levinson- I have understood your objections to the Constitution to be that it is “undemocratic,” ie, that it makes it unduly difficult for a majority of the people to get their policy preferences enacted into law. Specifically, because of bicameralism, the unrepresentative nature of the Senate, and the many veto points in the legislative process, it is relatively easy for a well-organized minority to stop even very popular legislation.

Here we have an example of extremely complex and quite unpopular legislation being enacted into law. I think that any fair-minded person would have to concede that if one looks at the election results in Virginia, New Jersey and particularly Massachusetts, the town hall meetings and protests, and the consistent results of the opinion polls, that there is no popular majority in favor of the legislation. I understand that people may believe that the majority would “really” support the legislation if it understood what was in it or wasn’t unduly influenced by Republican propaganda, etc. But that has nothing to do with our supposedly defective Constitution.

Now it is undeniable that our Constitution deliberately makes it difficult to get legislation enacted unless it is supported by a broad consensus. So the current example is clearly a product of highly unusual circumstances. But it still shows the limits of your thesis.

On the other hand, it appears that you may have an objection to the Constitution simply on the basis that it is unlikely to produce the legislation that you believe that we really need. That is an entirely different objection than claiming the Constitution is undemocratic.

Take, for example, the issue of climate change. If you believe that climate change could “literally” end up killing your grandchildren, I have to agree with you that it is extraordinarily unlikely that our Constitution will produce legislation to stop that from happening. On the other hand, I don’t see how changing our political system could create more than an infinitesimal improvement in those chances. Indeed, I can imagine only one form of government with any reasonable chance of moving at the pace and global scale needed to address the challenge as you see it. Global dictatorship.

# posted by

mls : 7:09 AM

Dear Sandy,

not everything is lost. Since you have been to my country recently, you might have noticed that in our current democracy – as in Weimar – party discipline is far more stringent than in the U.S. A politician like Joe Lieberman rooting for the adversary’s candidates would be thrown out of his party in a minute. Parliamentary debates are – with the occasional exception when the whip is lifted - little more than a stream of party line parroting. The government has the advantage of being grounded in the majority parliamentary parties but it still has to get a majority for most of the legislation in the second chamber, the Bundesrat representing the Länder (states), too.
Though there are concurrent majorities in both chambers now, most of the times – due to a never ending string of unsynchronized regional elections and changing majorities – the Bundesrat plays havoc with the Federal government’s pet projects. (Similarities with the U.S. Senate are implied.) Add to that equally unsynchronized local elections and you have the political system in constant campaign mood. No U.S. exceptionalism in gridlock!
There are however two crucial differences: (1) We do not enjoy party primaries. Ironically enough, fed-up with the aloof political system, some people here see that as a "refreshing" solution – given the U.S. experience, I happen to disagree.
(2) Political debates are heated and overblown - charades mostly. But we have one mitigating effect: we got more than two parties, which means that that you have to form coalitions and today’s adversary could be tomorrow’s partner. Thus, by and large, they don't overdo it.
Over the last four decades the ideological alignment in the U.S. Republican and Democratic parties has been considerable. Combined with the emasculation of party machines and the primary system, the extremes have grown, particularly so in the Republican Party where the rabid Right has practically annihilated the liberal wing and shrunk the moderate center to a few remnants in the Northeast and Midwest.
One stroke could revert the movement to the extremes: Throw all your party primaries open, and you need not tinker with your constitution!

Cheers
Augo

# posted by

Augo : 7:39 AM

I'm not a legal scholar, so I wouldn't bother trying to wade in to the constitutionality of the recent vote with someone who is. However, for a law professor to say that they are uninterested in whether or not a particular law (any particular law) is Constitutional is not only surprising, but frightening. If you guys don't care, then who can the rest of us trust?

MLS indicates that you may simply have taken a position against the utility of our Constitution, which would explain why you don't care if legislation is Constitutional, or not.

However, you both argued that you didn't care whether health insurance reform is Constitutional, and that health insurance reform was Constitutional. It's disappointing that you didn't elaborate, because perhaps your input would have answered some of my (and many other people's) honest questions on this subject.

To non-experts, insurance appears to be one of the few truly intrastate activities (policies cannot be sold across state lines). Since health insurance isn't an Interstate Commerce activity, it would seem that it's no stretch to say that the federal government has no business getting involved.

I wonder: is your position based on your status as a legal expert, or as a supporter of the action?

# posted by

Unknown : 7:41 AM

mls tell us:

"Now it is undeniable that our Constitution deliberately makes it difficult to get legislation enacted unless it is supported by a broad consensus."

How does the Constitution define such "a broad consensus"?

As to Prof. Levinson's concern with the Constitution, I am reminded of my home room high school classmate who back in the mid-1940s related some of his grandfather's sayings, one of which was: "Halitosis is better than no breath at all." But then we had the Civil War, which somewhat served as a forced mouthwash of the Constitution. It took a lot of mouthwash to get to Brown v. Board of Education and the Civil Rights Acts of the 1960s. Yet with the resulting Southern Strategy of Richard Nixon, there is a continuing need for mouthwash.

It's been drilled in us that "We are a government of laws, not of men." But it is men (and women) that serve in government that make the laws. In my lifetime (1930-date, and continuing, hopefully, with good health care), much has happened in our government, some good, some bad, but moving forward with some progress. Who wants to undo - openly - Social Security, Medicare, the Civil Rights Acts? While there is talk of repeal of the Health Care Reform bill if enacted, will Republicans really attempt such in the November elections battles? From Frum's mouth to GOP's ears, this might be a mistake. But Republicans can always reinstate Nixon's Southern Strategy (which may never have been abandoned).

I have my druthers as to how a new constitution might result in the men (and women) serving in government performing better in the public's interest. So let's keep mouthwash at the ready.

# posted by

Shag from Brookline : 7:51 AM

Correction:
You would of course need more than one stroke to throw open each and every party primary, i.e. rather 47+ (including the delegates and the Resident Commissioner from D.C., the territories and Puerto Rico). In Hawaii, Louisiana and Washington the rule already is in place in some form or the other.
Also, I must admit I was a little over-confident that the constitutionality of such open primaries is a given. It seems to depend on the exact form of openness and closedness. The crux could be that you can't mandate a party to open its primary if it does not wish to.
Note that a closed constitutional primary keeping out independents has been deemed unconstitutional, too (Connecticut). Apparently, I opened up another can of worms ....

# posted by

Augo : 9:11 AM

Here we have an example of extremely complex and quite unpopular legislation being enacted into law. I think that any fair-minded person would have to concede that if one looks at the election results in Virginia, New Jersey and particularly Massachusetts, the town hall meetings and protests, and the consistent results of the opinion polls, that there is no popular majority in favor of the legislation.

I think this is misleading. The latest CNN poll shows that about 13% of those opposed to the bill oppose it from the left. That is, they think it should go even further (say, single payor). Someone like me would fall into that group.

That doesn't mean, though, that the resulting bill is anti-majoritarian. Speaking as one of the 13%, I accept the bill even though I'd prefer a better one (like Ben Franklin with the Constitution).

If even half of the 13% feel like I do, then there's a plurality for the bill; if they all do, there's a majority.

To non-experts, insurance appears to be one of the few truly intrastate activities (policies cannot be sold across state lines). Since health insurance isn't an Interstate Commerce activity, it would seem that it's no stretch to say that the federal government has no business getting involved.

The only reason insurance can't be sold across state lines is that Congress already regulates it and imposes that requirement. Thus, you can't use that fact to argue that regulating the business is beyond the scope of Congressional power under the Commerce Clause.

# posted by

Mark Field : 10:44 AM

In his first post, Augo mentions concurrent bicameral majorities in the German parliamentary system - simple (50%+1) majorities. However, in American systems, e.g., the Texas State Senate and now the US Senate, the rules are implemented so as to require "super" majorities. Could not there be a practical way to restore/require a simple majority rule for the US Senate to pass legislation, confirm appointments etc., except where the Constitution explicitly requires the "super" majorities (e.g., treaties, conviction after impeachment)? We would still have the "check" of concurrent majorities - and a greater ability for the Congress to function.

# posted by

Huffalo : 10:46 AM

Mark- lets try to be reasonable. The CNN poll says that 59 percent of the people are opposed to the bill. Are you seriously trying to spin that as majority support?

I recognize that there are a lot of nuances in people’s views on this or any other subject. Plus a lot depends on how particular poll questions are phrased, the sample you choose, etc. But go to Real Clear Politics and take a look at all of the health care polls that have been taken in the last year. No poll has ever shown more than 51 percent support for the bill and the last poll showing that much was in October. The current average support is just under 40 percent.

# posted by

mls : 11:16 AM

"and quite unpopular legislation"

What parts? Is filling in the donut hole "quite unpopular?" Is removing barriers of those with pre-existing conditions? Is extended coverage for children on parent plans? Maybe tax breaks for businesses? Money for local health clinics? Continuing barriers to abortion funding?

It's partially hard, I guess, since the public at large (until now really) haven't really been informed by media accounts of what exactly is in the law.

"any fair-minded person"

Would find that phrasing needlessly inciteful. I live in NY. The NJ governor's race wasn't about health care. It is very unclear the weak showing by the Dem in VA was about health care either. "Fair minded" people also would disagree with you about some town hall protests. Does the racist taunts mean that too is a fair representation of the views?

"no popular majority in favor of the legislation"

Yes, a compromise that honestly is the result of a bad process (e.g., Republicans go for broke -- see D. Frum -- instead of compromising) results in a law as a whole no majority supports as a whole. This doesn't translate to them opposing various component parts. Or, the general end. One reason they voted in the people who voted for it.

one more person ...

"If you guys don't care"

He's not interested "in discussing" the matter, in part because he doesn't think it's unclear, leaving it to Jack Balkin to show why, who he notes he agrees with. So, what is "frightening" here, exactly?

# posted by

Joe : 12:01 PM

One more thing ... the MA is curious. MA already has a state plan. The opponent was a lousy candidate. And, this is supposed to tell us that the nation as a whole oppose this legislation?

Since Scott Brown voted for a state plan comparable, one might equally suggest the plan is not as horrible as some think it is. OTOH, Mitt Romney's remarks suggest how fickle people can be on this matter.

We are supposed to be "reasonable" here, admitting that it would be "unfair" to not be convinced by something that at best is quite debatable. Such remarks in fact can reaffirm Prof. Levinson's point that neither side is really talking to each other but themselves.

# posted by

Joe : 12:12 PM

Joe- I think you are missing my point. I am not trying to establish that a majority of Americans have thought this through carefully and have decided that the approach of the bill is the wrong one. I am sure that the vast majority, pro or con, have only the vaguest idea of what is actually in the law (that also may be true for a lot of members of congress).

I favored Bush’s Social Security reform, but I can admit that it wasn’t popular. Maybe it would have been popular if everyone had been well-informed and thought through all of the implications. Maybe it would have been popular if opponents hadn’t “scared” people. Maybe it really was popular and the polls didn’t accurately measure that fact. But the available objective evidence suggested that it wasn’t popular and that is the way that the political class perceived the evidence.

The same is true for Obamacare, only more so.

# posted by

mls : 12:47 PM

Mark- lets try to be reasonable. The CNN poll says that 59 percent of the people are opposed to the bill. Are you seriously trying to spin that as majority support?

Let's consider the ways you're wrong:

A. As to the operation of the democratic process, nobody ever thought that this refers to legislation by poll result. There are too many problems with polls to make that feasible or desireable. Here's Nate Silver pointing out some of the problems with that argument:

"Was the "will of the electorate" breached? I think any such framing has to contend with the following 14 arguments:

1. That Obama and Democratic Congress were democratically elected by very robust majorities on a platform which expliclitly included health-care reform....

2. That the voters have almost immediate recourse in the form of midterm elections that will take place in eight months and a Presidential election that will take place in two years ....

3. That polls show the overall concepts of reforming the healthcare system and providing for universal coverage were popular at the start of the process and remain reasonably popular now.

4. That polls show that the specific details of the Democratic plan are (mostly) popular, and that when a neutral and accurate description of the contents of the bills are read to the respondent, support usually increases to plurality or majority levels.

5. That substantial elements of the public lack basic knowledge about verifiable facts of the bill, sometimes because of deliberate misrepresentations on the part of the bill's opponents.

6. That history suggests that endeavors of this nature (Medicare, Social Security, Romneycare) generally become popular and are appreciated by the large majority of voters at some point after they become law.

7. That a tangible percentage of those who register as opposed to the bill oppose it from the left -- probably enough to form a majority with those who support it -- and may nevertheless prefer it to the status quo ....

8. That opinion polling is an inexact science ... and that it is sometimes conducted by those with perverse incentives.

9. That maniuplating the opinions of voters in order to affect instantenous public opinion surveys has become a more-or-less explicit goal of all parties in a legislative negotiation....

10. ...

11. That the groups who would benefit the most from health care reform tend to be politically disenfranchised and may not have their views reflected by polls, especially those of registered or likely voters.

12. That only a relatively small minority of the public wants the Congress to give up on health care reform, but that there are few obvious alternatives to the current proposals that are both politically tenable and fiscally responsible.

13. That the United States is a constitutional republic rather than a direct democracy.

14. That were the Congress closer to a direct democracy -- such as by having proportional representation of Senators, non-gerrymandered congressional districts, and a norm for majority-rules procedures in the Senate -- health care reform would have been signed into law months ago and would likely be substantially more liberal and sweeping than the reforms that have in fact been enacted."

B. As I pointed out, the CNN poll showed that a substantial percentage (13%) opposed the bill from the left. That doesn't mean they want to repeal it; it certainly doesn't mean that they'd repeal every provision in it (see Joe's post).

That 13% is the swing percentage: it flips the majority one way or the other. So yes, I think that you were entirely wrong to suggest that a majority opposes this bill in any sense meaningful to your original comment.

# posted by

Mark Field : 12:51 PM

Just a note: I had to edit out portions of Nate Silver's post in order to meet length limits. Follow the link in order to get the full post.

# posted by

Mark Field : 12:52 PM

Saying that because the majority of Americans support health reform means that they support this bill is like saying that because most Americans want to stop terrorist attacks they support torturing suspects and detainees to get information. A desire for reform or change does not mean that change in the wrong direction is supported. We could have world peace by dropping some A-bombs, but I doubt most of us would support that.

# posted by

Unknown : 1:02 PM

The stock market went up because of animal spirits or the wind or some particularly well liked trader had a good night last night and his sunny mood is rubbing off on his friends, not any kind of logical cause and effect. Using daily stock movement as evidence for or against anything isn't credible.

# posted by

Anonymous : 1:07 PM

"I am not trying to establish that a majority of Americans have thought this through carefully"

I didn't say you were. I said it was "partially" a factor here.

The "objective" evidence you supplied to show how it was "quite unpopular" was dubious. I suggested why. You ignored that; if it was "unfair" of me to disagree with your understanding, perhaps you might respond to my whole reply.

Instead, you brought up some unpopular legislation you thought was a good idea. You assume I missed your point and you don't address mine. Levinson is right again: talking past either other.

[To Tim: I'm unsure if anyone here is saying something that simplistic; it also is now law.]

# posted by

Joe : 1:15 PM

Mark- I think you (and probably Joe too) are trying to refute an argument that I didn’t make. You seem to be saying that Obamacare is not so unpopular that passing it was illegitimate (ie, “breaching the will of the electorate”). But that is not what I said. I said it was quite unpopular. Perhaps it is even more relevant to note that it is perceived by Congress to be quite unpopular. To wit, there are dozens of Democrats who perceived that voting in favor of the legislation would endanger re-election, while there is only one Republican (Cao) who felt voting against the legislation would do so.

If we take all of Silver’s qualifications and uncertainties, I am not sure if we could identify anyone or anything as unpopular. So, for example, polls showing that Congress has a 7 percent (or whatever) approval rating can be refuted by noting that after all, the public did elect the Members of Congress (except for a few senators), that polls show that people like their own representative better than Congress as a whole and that Congress always has a low approval rating. Or Dick Cheney’s low approval rating could be refuted by polls showing that a majority agrees with him on torture, closing Gitmo and trying terrorists in the US.

I do think that the argument that the CNN poll shows that a majority or plurality “really” supports the bill, despite the fact that 59 percent said they were against it, requires a willing suspension of disbelief. You want to focus on the fact that 13 percent said it was not liberal enough, but what about the rest of the questions? 56 percent said it created too much government involvement in the healthcare system, while only 16 percent said it was not enough. How do you square that with the idea that a majority want either the bill or something like single payer? If you read the rest of the questions, 70 percent think the deficit will rise, 62 percent think the cost of their healthcare will rise and 47 percent think they will personally be worse off (versus 19 percent who think they will be better off). These tell you pretty clearly why people oppose the bill. Some of these things, like the Medicare cuts, might be characterized as the bill being “not liberal enough,” but so what? They are still against it.

But even if we resolve every doubt and ambiguity in your favor, that would still leave nearly half of the public “really” against the bill. And my original point, which was simply that the Constitution does not make it as difficult to enact controversial legislation as Professor Levinson often suggests, would still stand.

# posted by

mls : 2:44 PM

"3. That polls show the overall concepts of reforming the healthcare system and providing for universal coverage were popular at the start of the process and remain reasonably popular now."

That seems to be the argument you are making here.

The idea of preventing terrorist attacks is as popular now as ever, despite the abhorrence to methods used to try and produce such a result. Support for a result does not equal support for the method used. And I am sorry, but your point that this was not unpopular is just flat our wrong. The bill was unpopular, check any poll from any organization (left, right, center). Although there were fluctuations, THIS BILL, in fact, was not wanted by a majority of Americans. The reasons for it being so, are irrelevant to the argument.

# posted by

Unknown : 2:52 PM

Um, guys.

The 'against' number was ALWAYS bullshit, because - as anyone with a brain knew - the final bill split the left. The Republicans flogged this for all it was worth and more - as to be expected. But fact is many on the left wanted to kill the bill at some point. I personally voted 'against' the bill a time or two in various polls. Out of frustration.

New poll out today:

Was passing the Health Care Reform bill a "good thing" or a "bad thing". 49% to 40% say a good thing.

Put that in your pipe. Majority opposed my ass. That was the narrative of a media who doesn't bother to distinguish between opposition from the left versus the right.

http://www.usatoday.com/news/washington/2010-03-23-health-poll-favorable_N.htm

wye

# posted by

whatsyourevidence : 3:30 PM

Saying that because the majority of Americans support health reform means that they support this bill is like saying that because most Americans want to stop terrorist attacks they support torturing suspects and detainees to get information.

I don't see how it's like that at all. If you want to argue that the health care bill is morally equivalent to torture, then you're welcome to try. Absent that showing, however, your analogy doesn't make much sense.

And my original point, which was simply that the Constitution does not make it as difficult to enact controversial legislation as Professor Levinson often suggests, would still stand.

No, your point would only stand IF the bill is unpopular in the sense you mean. That's why I keep pointing out that it's not actually unpopular in that sense.

In any case, the American system is not designed to mirror daily public opinion polls. If it were, then this poll would mean that we are happy that we passed the bill that yesterday we didn't want. Sorry, but I don't think that's right.

THIS BILL, in fact, was not wanted by a majority of Americans. The reasons for it being so, are irrelevant to the argument.

This is wrong for the reason I noted above. I'm personally in the swing group that thinks this bill should have been better. That doesn't mean I didn't want Congress to pass it or want it repealed. It's rather as if I went out to dinner and had my heart set on the swordfish, only to find the restaurant was out (all taken by selfish libertarians). Now I have to "settle" for the prime rib. The fact that I really wanted the swordfish doesn't mean I reject the prime rib or that I walk out of the restaurant. It just means I'd rather have had something even better.

# posted by

Mark Field : 3:42 PM

mls .. I don't think you are addressing me, since I specifically answered something you said. That is, answering a claim made here:

I think that any fair-minded person would have to concede that if one looks at the election results in Virginia, New Jersey and particularly Massachusetts, the town hall meetings and protests, and the consistent results of the opinion polls, that there is no popular majority in favor of the legislation.

Maybe the people in NJ and VA just don't like same sex marriage. The governor has more power in that area than this in that respect. Of course, it can just be that the opposition was weak and state issues dominated. Seemed that way from my perch in NY.

Town halls last summer having some loud protest aspect doesn't really tell me a majority was against the bill either. How exactly does it? Ditto tea party protests that in various ways did not represent a majority, including the racism.

Mark Field and others dealt with the polls.

Even with questionable poll data, I don't see how "any fair-minded person" is compelled to agree with you. This doesn't change if I and others did not just deal with your main point, whatever it was.

# posted by

Joe : 4:31 PM

Huffalo,
I second your proposal to change Senate rules. To your exceptions I'd add all confirmations of people to life-tenure, such as judges and justices. And that's really only because they'll still be around way after presidents nominating and many of the most "durable" senators voting on them have gone.
With the Senate composition of today the day of that rule change may never come. Even with a more moderate and conciliatory Senate battles might be fierce and prolonged, but given the tenure, should it not be that way?

# posted by

Augo : 4:48 AM

On the "popularity" issue: It's a phony one.
I hold that a bill does not lack legitimacy just because the poll of the day is showing opposition. An unpopular bill might be considered questionable because a politician never ever campaigned on it or clearly campaigned in one direction and then suggests in the bill the exact opposite. I can even construe a situation where the executive would be in breach of his oath if he would not do the latter. Just consider Greek PM Papandreou: The country is on the brink of financial collapse, the measures he's taken are deeply unpopular. Should he cede to the will of the electorate and provoke insolvency with consequences that would make the measures now taken look like a piece of cake?
But there can be no doubt in my mind: then candidate Obama was quite clear that he intended to present a health care bill that would have been far more liberal than the one you are stuck with now. He got elected, he got the mandate for it. (MA, NJ and VA voters do not represent the entirety of the U.S. electorate and are hence not empowered to revoke the mandate.) You might quarrel with him that he compromised too much from the outset - hence the opposition from the left - but it is in the nature of a compromise: in the end almost nobody likes the result: for the one side it's too little, for the other too much.
For arguments sake, let us assume that the American electorate reversed indeed completely since November 2009, and supporters of the original Obama mandate were now clearly in the minority. It is the very idea of representative government that politicians are entrusted for a limited period to basically do what they were mandated to at the time of their election. For all other matters you also give them - not a blank check but - a rough direction on how to procede. The covenant between the electorate and the elected has to be mutual in order to produce tangible results. The politician needs a minimum of stability, and I think it is unwise to demand to reverse course 180° within one election cycle - two years that is.

# posted by

Augo : 5:37 AM

mls seems reluctant to respond to my earlier comment on what constitutes "a broad consensus" in his beginning comment (which has been exposed by others and diluted) in which he said:

"Now it is undeniable that our Constitution deliberately makes it difficult to get legislation enacted unless it is supported by a broad consensus."

It is not that clear whether mls' concept of "a broad consensus" is among legislators or voters or whatever. So I ask mls again:

"How does the Constitution define such 'a broad consensus'?"

# posted by

Shag from Brookline : 5:50 AM

Augo's comments are appreciated. Hope to see him around in the future.

the Constitution does not make it as difficult to enact controversial legislation as Professor Levinson often suggests

SL notes that legislation like this "can occasionally" be passed. It was quite difficult to get this passed. So, what mls means even here is unclear.

# posted by

Joe : 12:13 PM

This bill had trouble passing the House, where 50% plus 1 gets you over the hurdle. The obstacle to passing it wasn't the Constitution, it was that it was unpopular.

God forbid we change the Constitution so that passing controversial, unpopular bills is easy.

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