Lame Duck experiements with Four Loko

The Lame Duck Congress has transformed into an enormous Energizer bunny. In a period when politicians traditionally accomplish little to nothing at all, representatives in the House, Senate and White House have shown a strange and alien characteristic - the ability to cooperate (enough). Democrats have displayed a greater willingness to compromise (mixed feelings here) in the wake of the November elections in which Republicans took back majority control of the House and made significant gains in the Senate, and a handful of Republicans - many of them retiring or resentful of the Tea Party movement's belligerence - broke ranks and gave Democrats enough votes to pass some pretty significant legislation that had been stalling for months.

Just to emphasize the fact, this generally isn't supposed to happen. For nearly 70 years, the Lame Duck session has been a time when congressmen/women accomplish relatively little, or insert text into other legislation to get earmarks or local victories.

Let's take a look at some of the wins/losses from this LDS you should have heard about:

• Congress passes legislation to aid 9/11 rescuers and cleanup crews with ailments from their work on Ground Zero.

• Congress and the WH agree on compromise legislation that extends Bush-era tax cuts (for poor, middle class and phenomenally wealthy Americans :/ ) for another two years, at which point the cuts will undoubtedly become part of the 2012 campaign season.

• Congress (finally) passes a Defense Spending budget for next year. House Republicans had been blocking the legislation until the WH agreed to permanently extending the Bush-era tax cuts. (refer to previous bullet)

• The DREAM Act fails a vote in the Senate, but President Obama vows to renew the bill next year as part of comprehensive immigration reform.

• The military's "Don't Ask, Don't Tell" policy prohibiting gay men and women to serve openly in the armed forces was repealed this week (sort of suddenly) by the Don't Ask Don't Tell Repeal Act of 2010. DADT was implemented as a military policy in 1993 as a compromise between President Clinton and a more Congress, but it's intent to protect gay men and women from prejudiced targeting was never fully realized.

• President Obama rallies enough Republican support to ratify the New Strategic Arms Reduction Treaty (START) with the Russian Federation. 13 Republican Senators crossed the isle for a 71-26 vote, and the Russian Duma is now expected to ratify the treaty by the end of the month. New START replaces the previous START that expired early this, and has be become a point of contention under President Bush when he moved forward with missile shield projects in Eastern Europe. It's better now.
  

• The Food Safety Modernization Act passes the House and Senate, and is signed by President Obama. Several amendments are passes weeks later to fix unresolved gaps issues and fill gaps in the regulations.

For the Cherry on top, the EPA is releasing new regulations for energy production and oil refineries :D This shift is a welcome last-ditch effort to wrap up some priority legislation before the new Congress is sworn in next week, at which point it's likely that nothing enjoyable or productive will come out of the legislature for a good long while.

ADDENDUM: I recently learned (thanks to SFGSA-IT) of another odd but reasonable law that was passed during this session. SB.2847, or the Commercial Advertising Loudness Mitigation (that's right, CALM), forbids television ads from playing at a volume noticeably louder than the programs during which they air. You know when you're watching a rerun of Law and Order on TNT, and it skips to a commercial that is suddenly twice as loud as anything you'd previously seen on that channel? Well, they can't do that anymore.

Law and the Multiverse

"Is Tony Stark in violation of federal arms control laws when he flies to Afghanistan in search of justice by exporting defense articles to a foreign territory?"
"Does the explicit organization of superviallains through the Legion of Doom expose all of its associate members to RICO claims and prosecution?"
"Can the Second Amendment protect Superman's heat vision?"

You may never have thought to investigate these kinds of questions, or if you have it was probably at 3am with a group of 2nd year law students who just finished finals (eh hem...). But no worries, now there is a place to address these timeless questions! Law and the Miltiverse launched on November 30 when two attorneys teamed up to explore the hypothetical legal ramifications of superhero/supervillain relations.

As an unexpected benefit of working in public risk control, this has become even more awesome. But even for those with no experience in criminal law or property insurance, it's worth a read.

Check it out.

Things people don't tell you about "City Life"

• It's not possible to get rid of fruit flies.
• Doing your laundry regularly will break your bank. Since when does a wash cycle that holds half of your darks cost $2.50??
• Dress shoes (and all shoes) do not last long against 4 miles of pavement each day.
• It is absolutely possible to find any manner of "ethnic cuisine" within 6 miles of any point in San Francisco.
• When people say "excuse me" and a) don't immediately pass you, and b) are not holding a map or fanny pack, it's usually best to walk away (this based on statistically significant findings). I'm still having trouble with this one.
• Traffic signals can be useful recommendations for pedestrians and vehicles, but no more than that. If you live near a large traffic signal, however, it can serve the additional purpose of colorful dance lighting in your living room.
• Dancing on the center dividers of busy commercial streets is really no big deal, but you are not allowed to dance in MUNI buses or railcars. Hypocrites!
• "People on the bus" can be an incredible source of endless entertainment, but you must be equipped with earbuds or large headphones at all times; small headphones do not work, and books (hah, books....yeah right) are only to be read when qualifying earphones are available. They must be easily accessible and able to be fitted within no more than 5 seconds, as this is the longest break you will ever experience in a conversation you do not want to be having on MUNI. It's also become apparent that the other end of the earphones do not need to be plugged into anything in particular, but if your trickery is revealed to your new-found BFF, you best be getting off the bus lickity-split.
• Night Owl MUNI buses run time trials through the Richmond District. If there are less than 5 individuals on a given bus after 1am, a 25mph speed limit is really a 60mph speed limit, and hills, stop signs or other bus stops are only obstacles to the finish that deserve no attention.
  
• There are coyotes in Golden Gate Park and they eat small animals. Reportedly, they got bored with the people in Marin and decided to walk across the GG Bridge awhile back. Having found plenty of garbage cans and squirrels, and no competition from the local raccoon population, they decided to stay in town and enjoy their newfound dominance on the top of the food chain. Now when they get deported, they just cross the bridge again AND THEY DON'T EVEN PAY THE TOLL!
• Never ever expect it to be hot; but when it is, San Franciscans will freak out and fight each other. Symptoms include a general 40-pt drop in IQ among drivers, excessive testosterone for everyone, shouting arguments about philosophical theories between the homeless and businessmen, and an immediate tripling of "The end is nigh" signs on Market Street. Everyone seems to be happiest with the high 60s - so for the love of God, get your ass into the carbon market America!
• It's surprisingly easy to find people who work for local government, to the point of paranoia. We seem to be everywhere, and with 26,000 City employees, we really are.
  
• Don't mess with the bearded homeless guy.

Bluegrass Love, TARP and Archduke Ferdinand on Debt

This past weekend marked the 10th Annual Hardly Strictly Bluegrass Festival - or perhaps more accurately, this past weekend was engulfed by the 10th Annual Hardly Strictly Bluegrass Festival. I say that because I can't think of a better word to describe 800,000+ people pouring into Golden Gate Park, forming a fluid mass that swelled to fill every space within the fenced event zone that included 6 stages, expensive heart-congestive food, and Randy Newman on a baby grand.

Between the aforementioned stud, Joan Baez, Fountains of Wayne (who indeed sang "Stacey's Mom") and Elvis Costello - who broke it to the crowd that the Padres would not let the Giant's choke, no matter how hard they tried - it was a good weekend that only demanded an 8 minute walk from our apartment. But above all others, a short feisty soul-singer made quite the impression as thousands of us danced till darkness, despite the San Francisco Mist. Sharon Jones & the Dap Kings wrought their funk upon the masses for 1 1/2 hours without missing a beat - and oh my, that woman can sing. Somehow the program either acquired a permit or convinced the police that it was not worth their efforts to fight, but a few friends and I brought wine and champagne to drink out of plastic glasses on a picnic blanket and no one even blinked - mostly because they were too busy with the music and enjoying their own.

Endorsement #2 is going to Gaspare's Pizza House for their feta cheese & sun dried tomato pizza, the coffer of easy red wine and the 25cent-for-three-songs personal jukeboxes at every table.

Endorsement #3 is going to The Blarney Stone Irish pub on Geary St. with the free air hockey and shuffle board, whose barkeep cut all of their prices because of the Giants' victory ("obviously!" he says).


Besides the music, and besides the pizza and pressed grapefruit-vodka drink, I learned two very interesting pieces of political knowledge this weekend. Firstly, Germany just completed its last $92 million installment of its World War One reparations debt [1]. This was a little surprising to me, considering that I studied in Germany and still talk about German politics and their war guilt and such, but the fact that they still had tens of millions of $ in war 90 year old war debt – let alone that they were close to actually repaying it – was never really discussed. And for good reason perhaps, as the state is attempting to cut spending and every dollar is being watched. Nonetheless, according to my experience and the more reliable polling data in-country the German populous has almost entirely missed the memo, and most don’t know what the Treaty of Versailles was or demanded! (for the record, it demanded Germany pay around $400billion in today’s dollar value for “guilt”)

What this means for all of you history buffs out there who connect the first War with the Treaty, the near-failed German republic, the rise of Hitler, the second War, the end of Hitler, and everything stemming from the Marshall Plan, is that WWI ended yesterday.


Secondly, TARP worked?! The two year term for the controversial bailout/regulatory program (Troubled Asset Relief Program) officially came to a close this Sunday [2], and the initial performance review suggests that despite all of the absurd and often obscene rants – and the legitimate concerns – against the program, it seems to have been incredibly successful. Instead of the hundreds of billions of dollars so many thought it would cost, it may be closer to $50b-$70b with a possibility of making a return profit. That may still seem a little “out there”, but consider that there was no economic ruin, market collapse, 30% unemployment or returning of the Messiah before the Horsemen, and the market is actually recovering (though with hardly any of the jobs we had all hoped for…). It seems everyone is a little tongue-tied after railing against it for so long as the epitome of government failure.

Pretty neat weekend :)

"Bacon scones."

"Or really?" It was clearly true, but the response was a reflex to obtuse ideas. Melted cheddar generously sprawled across the pizza-slice-sized pastry, riddled with small herbs or pepper bits, and slices of bacon protruded savagely from its sides in the places where anyone else would expect to find juicy blueberries or cranberries.

"Well we were really - I mean, I was just trying to ..." I looked to Meg for help, but she only raised her eyebrows and threw up her hands. The middle-aged Irishman looked back at me with what you might describe as puppy dog eyes, but seemed to say what are you getting at?. "I was thinking about having one of those - " I pointed to an enormous sugar-dusted almond croissant, hungrily.

"Yeah, or you could have one of these!" he pulled a scone out from behind the glass at the counter and set it excitedly on a plate. "I just made them last week. I was a bit bored sitting around at home and I had too much flour left over."

"And bacon?"

"Oh I always have plenty of bacon. But since no one was going to buy them at eleven o'clock, I froze them. They thawed last night and you'll be the first to get one. Lucky you!"

I wasn't surprised. "Yes, but I was hoping to try one of the almond croissant things that you have there," I emphasized, pointing again.

"Well then, I can tell you're really set on the croissant. And they're good too. I know, I made them as well - but how about if you also get a coffee, I'll just throw this scone in on the house, and you can tell me whacha think of it."

"Well I was planning on getting coffee too, I just hadn't-"

"WELL HOW ABOUT THAT! Oy, did you hear?" He turned to the cashier, who was slightly younger, jolly, and possibly Mongolian. "This young fellow right here wants to try one of my scones, and I'm giving it to him on the house."

"Well that's great...I suppose," the cashier frowned at the meat pastry. I handed him a Five as he crouched to reach our croissant behind the glass casing, and I prepared to sip my coffee with the expected satisfaction of a daily fix until I became aware of the owner's eyes staring anxiously at me. I stopped, and turned to him slowly.

"You gonna try it?!"

"What, now?"

"SURE, I need feedback!"

Wary, I replaced my cup on the counter and raised the scone to my eye level as the man stared at me - reviewing each visible slice of peppered bacon in its moment of desperate escape before being stuck forever in its pastry molding under a half-inch of pungent cheese - then to my nose, then to my mouth....

"And just so you know, I plan to use a lot less salt next time."

... ... ...

"And maybe a bit less lemon juice."

... And then to my mouth.

Somehow, delicious.

The Celtic Coffee cafe is situated between a series of nostalgic diners on McAllister near Hyde, and is technically part of the Tenderloin - a neighborhood long underdeveloped, underused, underfinanced and underappreciated despite its immediate nearness to the city's beautiful civic center. But within this enclave of persistent poverty, and just as in every neighborhood of San Francisco, there are discrete treasures of culture and entrepreneurship lingering behind inconspicuous doorways – and in this case, maybe behind some barred windows, vibrant graffiti and muttering street preachers as well.

It serves as an odd and appropriate metaphor for the hidden character of the district. Under layers and layers (and more layers and layers) of misperceptions, stereotypes and misleading agendas surrounding image and idea of San Francisco, it’s still part of a city dedicated to pushing the envelope in everyway it can. Indeed, there are more than 50 non-profit service groups active in this 0.5milex0.7mile neighborhood alone, and this often means a mad dash to front of the pack for attention, larger service populations and additional funding. Of course, few of them actually coordinate with one another (a common problem) but the energy directed inwards and downwards is nothing short of incredible. My Fellowship cadre got a chance to meet with one group who has been making serious headway in engaging the homeless of the area – the Tenderloin Neighborhood Redevelopment Corporation… (more to come on that, but remember the name)

Housing Hunt: OH YEAH!

"Is it... too expensive?" he asked. The man fidgeted with the paperclip between his fingers, pulling it apart and bending it hastily and absentmindedly into abstract figures like a balloon animal. "It's too much, isn't it? Right?" His snappy suit and well groomed hair contrasted sharply with his anxious ticks, but even more so with the apartment. Paint seemed to be somehow melting off the wall in the awkward kitchen, the large wooden floor of the living room warped just enough to make the guests occasionally stumble unexpectedly, a finish of dust had permanently settled into the shelves and the bath, and a single light struggled to cast its rays into the corners of a dim bedroom. I looked out of the one 6x20" windows onto a small cement patio with a sad, crumpled barbecue leaning against the wall.

He stared at me. "Well, I mean ... I wouldn't say..." I stumbled for the words to say yes, without actually saying so. Come on, I urged myself, four years of political studies. This should be EASY. "It's not what we were expecting from the photos, but it definitely has some ... HOMEY character to it. We might be able to work with that."

"Have I shown you the cellar?"

"We were hoping for ... excuse me?"

"The cellar. This floor comes with a basement. Or something."

"A basement or something? Aren't we on the second floor?" This was true, to a point. The apartment was on a steep hill in the Inner Sunset, and this level could conceivably have a 'cellar' of sorts. He walked to a door in the wall of the bedroom, with one of the other prospie renters and I trailing close behind, excited for the promise of more floor space. The man in the suit put his paper clip in his pocket and opened the door.

It was a personal Bat-Cave. The dark 'room' spread into the shadows along a cement walkway. We bowed our heads beneath exposed wooden supports, and turned right into something once related to a large hardwood storage closet that was now filled with dozens of carpets and wires and pipes, and in the back of the room a very small red door stood two feet off the floor. I climbed through the dark mess, gripped the brass handle and twisted. And twisted. And twisted more. The handle spun several times, I pulled back, and it simply came loose so it was dangling in place.

"Oh that door is locked," the manager explained shortly.

"How is it locked?" I laughed. "The handle isn't secured"

"It's locked form the other side."

"Oh does it go to the other units then?" the other guy reasoned.

"No."

"Then... where-"

"So this hallway here stretches back to the granite in the hillside." He directed our attention to the black corridor. "I should really put some lights in here now. Anyway, your welcome to check it out." Curious, I stepped carefully down the walkway, then fumbled down the walkway, then followed the wall down the walkway, and all the while the ceiling got lower and lower until I was squatting on exposed rock - or at least what felt like exposed rock.

I walked back to the doorway and stepped into the dim light of the little bulb, and caught Chelsea's eyes. "So, how do you like it?" I asked.

"Um..."

"Yeah. Did you see the cellar?

"It has a cellar?!"

The search for affordable housing in San Francisco is a "trope". It's one of those thing that any Bay Area local will recognize when you drop it into a conversation. Think of it as looking for a particular antique in a market of pawn shops, except you don't quite know how to describe what you're looking for and the sellers are convinced that they have it, and so you have no power in negotiating.

To be fair, this apartment had a nice view, and was actually decent size. It was also almost $1400/month. The first apartment we viewed was a bit smaller. It's actually easy to imagine - think of your usual bathroom in a Starbucks or a Burger King. Now take three of those, put a big window in one, and that's the floorplan for a "Well lit 1BR with Kitchen". We viewed another 1BR in Sunset that was nice. It had new wood floors, soft lighting, and a $4250 deposit required. It's really hit and miss with the landlords too - we met one who managed an incredible apartment with views of GG Park, but he was a carbon copy of Sheldon Cooper, prohibited the lease paperwork from leaving the premises, and required the deposit to be presented in full on the spot to secure the place. Another one showed us around a comfortable apartment in a crappy building three blocks form the projects - with a window overlooking the district police station - but he was by far the friendliest landlord I've met.

After five days of viewings in a week, we finally agreed on a a second-floor Edwardian apartment in the Richmond District. Most days around here see fog or sun with an ocean breeze in the summer, but Fall (crossing fingers!) should be warmer. We move in Sunday morning, and I start work on Monday. So that'll be fun.

(The living room --> bedroom)

FB invite to follow the new Blog

As some of you know, I will be starting a fellowship with San Francisco city government next month. As fewer of you know, I started a blog [this one] three months ago with the limited ambition of getting some non-facebook users in on a debate about healthcare. Apparently they got a bit frisky, because now (three months later) they are giving birth to a glorious profit child. That is, I’m transforming my “blog” into something like a log of my experiences, on the web (see what I did there?), to use as a median for discussion and keeping in touch with mah peeps.

If you’re interested, Politic and the Rumpus is a way for me to share my stories and insights into local government, policy debate, culture and city misbehaving as I work my way through the fellowship program – though I should disclose that I still plan to try and force discussion on social, political and legal debates.

Personally, I think you should all check it out unless you have particular moral or linguistic reservations about “blogging”. I'm not sure how active it'll be for a few weeks, but you’re welcome to ask questions, answer questions, throw out ideas, or just be a jerk and make other people argue with each other. You can link to the blog at http://politicandtherumpus.blogspot.com/ or you can just read it and respond as a guest user. Tell your friends, tell your mom, tell your cat (if you have one and we've met), but maybe don’t tell critical law officers – I can’t promise everything will be above board…

Peace,
Luke

Federal Judge, 'DOMA unconstitutional' after 14 years

In two companion rulings last week, US District Judge Joseph Tauro found that Section 3 of the Defense of Marriage Act ("DOMA") violates the Fifth and Tenth Amendments of the US Constitution.

This is surprising for two reasons: first, this ruling could strike a hefty blow to the 14-year old DOMA, though it is sure to be appealed by the DOJ; and secondly, NO ONE HEARD ABOUT IT! The story was able to make its way onto a handful of news cycles by Thursday morning (a week later...), but the issue has largely been ignored by major broadcasting media.

Gill v. Office of Personnel Management

Massachusetts v. U.S. Department of Health and Human Services

Thoughts?

If you don't know what I'm talking about, then you a bit of context. The Defense of Marriage Act was signed into law in 1996 by then-President Bill Clinton (a little disappointing) after the bill was fast-tracked through Congress with overwhelming support in both the Senate (85-14) and the House (342-67). [...Side note: Clinton was then, and for years remained and opponent of same-sex marriage until very recently. Though he pushed for the the adoption of "Don't Ask, Don't Tell" as a compromise with the Joint Chiefs and Congress to allow homosexual men and women to serve in the military (in theory), the White House likely saw the bill as an opportunity to court more conservative voters in the '96 election.]

Many policy makers at the time were freakin out and claiming that the recent recognition of same-sex marriages in Hawaii would lead to a (*cough) 'domino effect' among other states, as they would be required to also recognize those Hawaiian marriages under the Full Faith and Credit clause of Article IV of the US Constitution - which basically says each state has to respect the legal benefits or certificates issued in any other state of the US. This is a fair concern, because that is the law, and it says so in the Constitution. What happened next was a bit crafty. Key law makers realized that barring same-sex marriage across the US and in every state, with a federal law, could be seen as a little too overreaching, and it would certainly be struck down in the courts on grounds of infringing on state sovereignty. So instead of targeting the issue broadly and saying that states would not have to recognize certain legal marriages of other states (sticky ground again), the federal government decided to specify what the legal definition of "marriage" and "spouse" meant, on a federal level.

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

It's kind of like cheating, but it worked. Other states would not have to recognize those marriages that failed to meet the federal definition. The bill passed, but since 2005 the Act has faced a host of legal challenges. The Supreme Court has so far refused to accept any cases regarding the DOMA, but given Judge Tauro's scathing rebuttal of the legislation, it may soon be forced to. The decision cited contradictions to the the Tenth Amendment and the Due Process Clause of Amendment V. In the case of Gill the plaintiffs did not challenge the right of same-sex couples to marry, but rather the federal government's different treatment of couples legally married in Mass. and opposite-sex couples, citing health, retirement and tax benefits.

"DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection ... As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."

In the Massachusetts case - in which plaintiffs presented specific costs and challenges faced by the state since the passage of DOMA - Judge Tauro cited the Spending Clause of the Tenth Amendment in his criticism of DOMA.

That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.

The Justice Department this week pledged to make an appeal within the 14-day 'waiting period' after the ruling, but this could also drop the Obama White House into a tricky position. In February of 2008, Obama's campaign issued a clear statement on LGBT rights. "Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate," the statement reads. "While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does." In 2009, and again this week, the DOJ has seemingly contradicted this position by pursuing appeals to DOMA challenges, and this has justifiably concerned many gay-rights advocates who supported the original campaign. The White House will have to make its position clear in the coming months, but for now you can follow the story online at LA Times or PoliGlot blog.

What's the fuss with Healthcare? (A Converstion)

LET'S TALK...

After decades of arguing and arm-twisting, the passage of a new healthcare reform plan is being welcomed with something less than a grand “hoorah!”. The Patient Protection and Affordable Care Act (PPCA) was signed into law on 23 March amidst everything from cheers to resentment, and even a score of death threats to federal representatives (yay, we are so diverse!). In the past few days there have been public challenges to the Act’s constitutionality and open accusations of socialism, despite the fact that few people on either side of this issue actually seem to know what is in the new bill.

I want to think out loud on this and get some feedback from other people as i try and make sense of it, so whether its support or scolding criticism you offer, feel free to respond - it's just politics after all!

THE BASICS

I mostly support the new healthcare reform, though I am disappointed on a few points and I’m suspicious of others. And yet, overall, it seems to be progressive and necessary, and not unconstitutional. I hear a lot of opposition to one degree or another, but few if any of the arguments have really been convincing. Given the level of opposition I’ve got believe that there are at least a handful of reasonable protests, so if I miss something please just yell at me and tell me what the issue is.

I am not sure how familiar you as the reader are with the bill, but the major talking points are something like this (based on re-evaluated CBO report):

• The bill expands affordable healthcare coverage to 32 million people


• The initiatives and requirements established set the cost at approximately $940 billion (USD2010) over 10 years, but in doing so actually reduce the federal deficit by $143 billion over the first 10 years of the plan and (theoretically) another $1.2 trillion over the second ten years.


• It forbids discrimination of private health insurance coverage based on pre-existing conditions (applies to children in August, and to all adults by 2014), and allows dependent children to remain on their parents’ health insurance plan until age 26 (basically aimed at reducing costs of out-of-work college grads)


• Creates a state-based Health Insurance Exchange program, partially funded by the federal government for the first five years.


• Reforms Medicare Advantage, Medicaid, and a lot of other stuff, and with the reconciliation bill H.R. 4872 fills some gaps and mods other programs.


• The bill creates an “individual mandate” that requires every citizen and legal resident to be enrolled in a health insurance plan (except for those experiencing financial hardship, whose income is below certain levels, who have religious objections, etc.), or to pay a “tax” if they choose not to enroll and do not meet any of the exemption criteria.


• Good summary of PPCA here: Kaiser Foundation or CBS News (1) and CBS News (2)

The new reform system ultimately falls somewhere between “health insurance” and “health care”. The distinction is in more than semantics – the two systems function in different ways and with different goals, and the keystone is the individual mandate. The basic idea of insurance is that you join a risk pool, pay into the pot and then, if something expensive or unexpected happens, that pool pays for your expenses. It’s catastrophic coverage. The principle of a health care plan is that in exchange for paying into the system, you get payments for predictable events like tests, scheduled checkups or prescriptions. What we have pulled out of the so-called “debate” of past year is a compromise; instead of everyone paying a public tax to receive universal coverage for catastrophic or predictable events, we’ve created an individual mandate to require the same thing but through scores of private providers.

What came out of this argument were two clearly labeled and divided opinions of public health policy: One side suggests that healthcare is a RIGHT, and the other claims that it is merely a PRIVILEGE in our society. Both sides have a handful of talking points to support their positions, but they are often general and loaded with unspoken assumptions. I am willing to grant for the sake of debate that healthcare may not be a human right, strictly speaking, which suggests that it is universal and must be assured to all individuals in any case. However, I do believe that it has become a civil right that should be made available, affordable and accessible to all members of our society. More specifically, I believe that its unavailability compromises the access of members to other social goods that are essential to participating in the public and “political” sphere. In order to understand where I’m coming from on this, we need to take a step back to the bigger picture to clear up some assumptions ... (if you've read Walzer, just bear with me)...

A political entity is fundamentally the agency of a social compact, in which a group of individuals (i.e. all Americans) pool their resources, surrender certain rights (like killing, stealing, retribution - shifty vigilante stuff) and agree to operate within the resulting conditional authority of the political body, so that all members of the community may be afforded greater protection and opportunities. We then afford certain basic rights and liberties to all members, so that they may be considered as equal in the political sphere; that is to say, they have the same say in how the political body regulates the relationships of its members, actors, parties and other forces (other "social spheres”), as does any other single participant. It is a matter of power and of status.

This idea in itself should not really be a contested point, as it is among the fundamental principles of democracy and other forms of representative government. This is why we demand equal protection under the law, equal pay for equal work between the sexes and races, and equal say in elections – “one person, one vote”. It is why we protest when we are discriminated against for factors beyond our control, and why we object to the power of corporations in our politics. It is also why we as a nation created institutions such as Social Security – so that each member of our political community would be assured a basic (financial) security and the ability, at least in principle, to retain access to the body politic and remain an equal member of it. Laws that protect our rights not only assure us certain powers, but also assure us each the status of an equal citizen.

HEALTHCARE ACCESS AS A POLITICAL GOOD

Now, it makes sense for healthcare to be seen as a political good for couple of big reasons:

1) The first is a matter of effective public policy; the common health cannot be effectively managed or protected if not everyone is participating, or able to participate in health treatment. When it comes to communicable diseases like Avian Flu or H1N1, this even becomes a security concern. Our government may not really have the authority to force every individual to get specific preventative treatment, but it does have the authority to regulate particular key interstate markets [^1] (consider the coal market in the 1930’s), to create a new service, and to make that service available to citizens and residents, especially when it is beneficial to the majority of Americans.

2) Consider a hypothetical social contract: wouldn’t we each want the opportunity for healthcare if we were in a position where we could not otherwise afford it in an open market, especially when we know that each and all of us will need medical treatment in our lifetimes? Some of you may suggest that, like negotiating in any contract, you may not wish to agree to a condition that you do not expect to serve your needs. If so, consider two things: a) is it rational, or in your own interest, to expect that you or your dependents will always have the resources needed to afford private, free-market insurance and receive personal healthcare?, and b) is it reasonable or just to say that others who cannot afford such care do not deserve it?

3) As I suggested above, access to affordable healthcare does affect an individual’s membership status in the political community. Even a cursory glance at independent surveys supports this. For instance, a 2005 Harvard Law study found that about 50% of all declared individual bankruptcies reported that healthcare costs were a substantial contributing factor. About 70% of those declaring bankruptcy even had insurance at the time of their initial medical expenses, but had significant gaps in coverage or lost their coverage. A study in Health Affairs (2006) found that large medical debt, even among insured people, presents nearly as high a barrier to healthcare access as having no insurance [^2].True story. A recent study by the Kaiser Foundation indicates that reports of rising healthcare costs as a “barrier to needed care” have risen at an average rate of 1 million reports per year between 1997 and 2006, and that the total number of reports rose to 39 million in 2006.


What does it say about a person’s status as an “equal” member of society if he/she can be killed by a common illness or long-term injury that could otherwise be remedied or prevented if they could afford treatment? That doesn’t seem like security.

What’s more, but our government already recognizes the need for healthcare in the most impoverished demographics through Medicaid. Unfortunately this program becomes incredibly cost inefficient, such that nearly three-quarters of Medicaid funding goes to the top one-fifth who have the greatest need for remedial treatment. We then have four solutions: a) reform the program for a short-term fix to symptoms of an ineffective healthcare system, b) increase funding without addressing the cause of expenses, c) repeal Medicaid and leave the poor suckers to deal with it on their own, or d) develop and utilize a practical market for widespread preventative treatment.


THE MANDATE

There have been very public protests against the PPCA that accuse it of being “Unconstitutional!” Now, I’m all for protests and arguing that the federal government is overstepping its constitutional restraints in certain cases, but this frankly is not one of those times. I’m willing to entertain arguments to the contrary, but so far I haven’t heard any that are solid and sound. Most people accusing the government of socialism point to the individual mandate. The finer points of this will be worked out in the courts in the coming months years, but in principle this does not seem totally out of line. The justification is actually in the ban on discriminating against pre-existing medical conditions.

Health insurance providers have traditionally held the right to reject applicants who have pre-existing health conditions, citing potential costs to the provider. It is the free market after all, and companies looking for a profit should be able to negotiate contracts on their own terms – basic cost-benefit stuff. But saying this is the way it ought to be already supposes that healthcare should only be subject to the market forces and individual circumstances (this is the “privilege” side). As I’ve already argued, healthcare access has political consequences. When individuals are effectively refused access to healthcare because of pre-existing conditions, then their political access may also be jeopardized because of factors beyond their control. It is not often their fault or responsibility, but they are held responsible and denied coverage and care.

If someone is a professional daredevil with a history of failed attempts and picking fights in shifty bars, then that is one thing. But “pre-existing conditions” include anything from asthma to cancer, and in 9 states this can even include a history of domestic abuse – as the victim! A 2007 survey reported that 12.6 million non-elderly Americans were discriminated against because of a pre-existing condition between 2006 and 2009 [^3]. A similar caveat is “rescission”, in which such an insurance provider can cancel a plan when patient costs get too high. Imagine a scenario where a client is diagnosed with cancer and their treatment drags out for months, and includes expensive medication and tests. And then they get booted from their insurance coverage. This policy was legal in 45 states before the passage of the healthcare bill, including in California.

The need to exclude pre-existing conditions in health insurance seems obvious if we are aiming for a functional and just healthcare system. The immediate consequence is that, without a government managed single-payer program, and without an individual mandate, people could simply buy “insurance” after a diagnosis or catastrophic injury, and companies/government would have to accept them at default rates and a standard premium. Imagine…. (courtesy of Eric Zorn)

Operator: Acme Auto Insurance, how may I help you?
Man: I just came out of a store and found that someone plowed into my car and took off. The entire back end is crushed.
Operator: I'm sorry to hear that, sir. What's your policy number?
Man: Oh, you can tell me that later.
Operator: Sir?
Man: After I buy my policy, you can tell me the number. And you can tell me where to send the repair estimate--
Click!

This little conundrum might not immediately cause a systemic failure, but eventually the only individuals participating would be them sick folks with the most severe health costs. Providers would naturally have to raise their rates across the board (otherwise it’s back to discrimination!) until even those people with traumatic health issues couldn’t afford them, and THEN the system would collapse.

RIGHT TO HEALTHCARE vs. INSURANCE

The argument that healthcare is not a right is specious off the bat. Emergency healthcare already is a recognized civil right in almost all cases. Imagine you stumble into a hospital with a potentially fatal condition or injuries to all sorts of body parts. The law actually requires that you be treated whether you can afford it or not. This applies to you and to everyone else, legal citizen or not. Indeed the alternative is that the EMTs arriving at the scene require you to produce cash or credit, evidence of insurance coverage and legal documentation of your citizenship before helping you out of your burning car that is at that moment seriously considering a dramatic explosion. If a person ultimately can’t pay the enormous medical fees, then the cost is passed on to other patients and other clients who can pay, and to the wider public through taxes.

So to be clear, what you as the antagonist probably mean to say is that certain qualified healthcare – perhaps preventative – is not a “right”. Let’s assume you haven’t fully bought my “civil right” idea for the sake of argument; if these outrageous costs of the uninsured are being passed on to the rest of us, then don’t we as a political community have the authority to require individuals to have health insurance, or to participate in the collective healthcare system so long as they can afford it? And if they wish not to participate, do we not have the authority to require at least a small tax to cover some of their likely costs? We would end up paying into a larger pool for healthcare preemptively instead of indirectly later on so that we are each assured health services that we all will need at some point.

We already pay a universal tax for Medicare and Medicaid, and these have already passed their tests for constitutionality. And these are fully-fledged government health programs. This newest plan involves far less government direction or management, and indeed keeps with the American tradition of relying on the private health insurance system as the foundation of public health.

Lastly, Congress has the authority to regulate interstate commerce for the well being the greater national union and all of its members as granted by the Constitution (Article I, Section 8, Clause 3). The regulation of national health insurance markets arguably falls under this umbrella, as costs for healthcare transcend state lines and affect all Americans. If we are to truly reform the healthcare market, it cannot be done with a patchwork of state-by-state provisions. However, there is admittedly a rather sticky point with the federal government taxing economic inactivity, and requiring an individual to engage in a contract with a private company. But again, this could easily be avoided with the provision of a “public option” for a separate government insurance plan, for which there is plenty of precedent for taxation.


- - - - - - - - - - -

[1] Carter v. Carter Coal Co., 298 U.S. 238, 290 (1935) and Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 395 (1940)
[2] Health Affairs, 25, no. 2 (2006): w89-w92
[3] Commonwealth Fund Biennial Health Insurance Survey, 2007