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Saturday, August 13, 2011

On the Health-Insurance Mandate: Nullification or Judicial Review?

A Republican U.S. President pushes hard for the U.S. Government to play a more active role in K-12 education under the rubric of “No Child Left Behind.” A Democratic U.S. President pushes hard for the U.S. Government to require residents to purchase health-insurance. Some of the same Republicans who cry foul on the insurance mandate insist that “marriage” be federalized through an amendment to the U.S. Constitution. From whichever vantage-point one cares to assume, political consolidation at the expense of federalism seems to be the name of the game in American politics.

Proponents of the health-insurance mandate have argued that Congress acted within its authority under the U.S. constitution’s commerce clause. However, Ken Cuccinelli, the attorney general of Virginia, argued the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service in commerce. Cuccinelli’s complaint suggested that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment rather than enumerated to the purview of the U.S. Government. In other words, the supremacy clause pertains only to powers delegated to the U.S. Government. That government is not supreme where the states are sovereign. The latter is substantial in principle, even if not recognized in practice; all powers not explicitly granted to the federal government remain with the states or the people, according to the Tenth Amendment to the U.S. Constitution.

So it is rather perplexing that the State governments have generally been sleeping through federal encroachments since the time of the CSA-USA war in 1861-1865. As repeated efforts to thwart federal encroachment failed, I suspect the state governments have given up, though several of them seem to have woken up in contesting the federal mandate on health-insurance. Yet the objection is issue-specific, and thus not apt to lead to any fundamental realignment from consolidation back to federalism. Americans tend to be issue- rather than systemic-oriented, and this is reflected in the focus of their elected representatives. Unfortunately, this can mean that no one is left watching the store itself; everyone is debating the particular products on the shelves—and with carefree indifference to even the most relevant history. For instance, the history of nullification has apparently fallen off the shelf, at least with respect to any collective memory.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty. The South Carolina legislature relented (though its succession document would be retrieved in 1858, after the Congress had just passed another tariff on rice and cotton exports. Jackson’s message was that nullification of federal law would mean the dissolution of the Union.

Nevertheless, the governor of Virginia signed a bill into law in 2010 nullifying the federal mandate. The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus reduce the anticipated cost-savings. Similarly, Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — were considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions of public officials at the state level in the twenty-first century seem foolhardy. They were on much firmer ground in contesting the validity of the federal law through the federal courts, which can declare a law of Congress unconstitutional. However, this means is not without drawbacks.  In particular, there is a structural conflict of interest in having the federal high court decide a matter between the government of which the court is a branch and a state government. Not surprisingly, the U.S. Supreme Court has tended historically to interpret the U.S. Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire and finding that that umpire tends to rule in favor of his or her own team. The surprising thing is that onlookers are surprised when this happens.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama. Article 6 of the U.S. Constitution indicates that federal law is superior over state law where there is a conflict, but this doesn’t make sense outside of the federal government’s enumerated powers—for otherwise why even enumerate? To rely on elections for the needed correction is not sufficient, according to Mises. “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain.” It is almost never asked: “Who is the sovereign, the state or the federal government?”—a question put by State Representative Chris N. Herrod, a Republican from Provo, Utah. Technically (but not in practice), both governments have governmental sovereignty in the American federal system; it is not an “either/or” question.

The question is perhaps whether a balance between the two systems of governmental sovereignty within the American system can be restored simply by reacting issue by issue. Is it possible, moreover, for the American people to embrace a constitutional moment wherein the architectonic of the system itself is the issue?

Click to add a question or comment on federalism via nullification or judicial review on the health-insurance mandate issue.


Kirk Johnson, “States’ Rights Is Rallying Cry for Lawmakers,” New York Times, March 16, 2010. http://www.nytimes.com/2010/03/17/us/17states.html

Alexander Mooney, “Virginia Governor to Sign Law Firing Back at Health Care Bill,” CNN, March 24, 2010. http://politicalticker.blogs.cnn.com/2010/03/24/virginia-governor-to-sign-law-firing-back-at-health-care-bill/?fbid=UERb4EI-c6a#more-96318

Wednesday, August 10, 2011

Diplomatic Pressure & Human Rights: The Case of Syria

It is perhaps telling that the world is more or less content, at least as of 2011, to rely on diplomatic pressure in the idyllic hope that it is sufficient to remove a tyrant from power.

In August 2011, the U.N. Security Council issued a statement condemning Assad’s offensive in Syria against his own people. The Arab League and the Gulf Cooperation Council also denounced Assad’s violence. Furthermore, Saudi Arabia, Kuwait and Bahrain withdrew their respective ambassadors. Meanwhile, the Obama administration praised the increased diplomatic pressure and urged that more was needed. Washington was looking to Turkey to use its influence. “Historically, concerted multilateral pressure and sanctions have the greatest impact on the Assad regime’s calculations,” Andrew Tabler of the Washington Institute for Near East Policy said. We “know that sanctions impact the regime, given its terrible economic situation and the regime’s worsening finances,” he added. Yet an expert from the International Crisis Group admits that it may not matter to the very top.

I contend that even though a “calculations” approach in response to Assad may match his tactical-oriented or strategic approach to governance, the “tit-for-tat” level is grossly insufficient not only for removing a tyrant from power, but also in terms of dealing with human rights abuses. In other words, calculated effect is too wan for a domain such as human rights in which people are literally losing their lives.

                                                  LA Times (2011)

For example, relying on Saudi Arabia to pressure Assad because he has been going after Sunni tribes with ties to the kingdom naively assumes that the dictator would simply walk away from power simply from external pressure. Even in spite of opposition from the Arab League, Gadhafi was able to hold on to power at least as of August of 2011. Even bombing Tripoli and aiding the opposition had not achieved enough external pressure to remove the tyrant from power. Was Assad to simply walk away from solely diplomatic pressure?

If Gadhifi had lost the right to rule by international agreement, then to do anything less than remove him from power by force makes the international position look weak, if not impotent. For someone such as Barak Obama to say, “Gadahi must leave,” and then for the tyrant to remain makes Obama look foolish (and impotent).  That is to say, Obama ought not over-reach. More generally, if the international consensus is that a tyrant has lost the legitimacy to rule, the parties of that consensus are obliged to remove that tyrant unless an international mechanism is set up to do remove rulers who have been “ruled” illegitimate. In other words, governmental sovereignty is not an absolute, and the world ought not reply on diplomatic pressure to enforce transgressors. The duty arises out of the declaration and because the citizens being abused are not in a position to remove their dictator themselves.

Click to add a question or comment on the use of diplomatic pressure against a ruler who has lost his or her right to rule.


Borzou Daragahi, "Arab Nations Add to Pressure on Syrian Regime," LA Times, August 9, 2011. http://www.latimes.com/news/nationworld/world/la-fg-syria-protests-20110809,0,3999024.story

Tuesday, August 9, 2011

The London Riots of 2011: Protesting Police Power

Over three nights of rioting in London after the police shooting of a 29-year-old father of four, over 450 people had been arrested and 44 police officers injured. The rioting began on August 6, 2011 when a peaceful march in protest of the police use of lethal force turned violent. According to the Huffington Post, “Hooded and masked youths threw bottles and petrol bombs at police and buildings and vehicles, setting a building, a bus and cars alight.” The source of the violence seems clear, at least with respect to its beginning. Rather than being fueled by greed at that point, anger at a possible abuse of power by the local police seems to have been the motive. To be sure, rioting spread to include the looting of stores by kids and opportunistic adult thieves, but to claim that greed itself was the driving force instigating the riots is to miss the purpose of the initial march and give the London police a pass.

According to the New York Times, “The Daily Telegraph struck a popular chord when it blamed a ‘culture of greed and impunity’ that [the Telegraph] said extended to corporate boardrooms and the government itself.” To be sure, the greed that almost took down the global financial system in September 2008 seems unglued from any feasible normative constraint, including that proffered by Christianity (which formerly could threaten an afterlife literally of fire and brimstone).  Indeed, the Christian virtue of magnificence (i.e., philanthropy on a grand scale) can even perpetuate greed, as being wealthy is a prerequisite— rather than like a camel too big to get through the eye of a needle. Left unanswered by the Telegraph, however, was how or whether the greed in a bank’s boardroom that results in liars’ loans followed by foreclosures differs from the greed of a looter.  The differential treatment by the state government was palpable: bankers get bailouts (and bonuses), while looters get the full force of the law.

In any case, irrespective of any accretions of greed having been adjoined to the violence, residual anger at the police’s use of their power was likely in play as late as the third night, when, according to the deputy Mayor, “disturbing levels of violence were directed at officers again,” including one policeman suffering broken bones and another receiving an eye injury. Were greed the only motive, anger would not have been directed at the police. Rather, the strategy would have simply been to evade them.

Furthermore, lest it be presumed that the anger over the force used by the police was simply a manifestation of selfishness, it could be argued alternatively that the unselfish human motive to stand up to power in the midst of an injustice was involved. This is not to justify the behavior, for the protestors/rioters would have been wiser to wait for the Independent Police Complaints Commission do its work and arrive at a determination; an unsatisfactory answer could then be matched with peaceful protest and an unwillingness to volunteer to help the police, rather than with violence.

At a distance from all the “mayhem,” I suspect that there is more to this story than merely a reaction against one incident (and even the looting).  I would not be surprised if the local police had a pattern of behavior of abuse of power, and that the shooting of the father of four was the last straw. To be sure, the troubled youth culture that partook of the violence and stealing is perhaps just as corrosive as unaccountable police abuse of citizens. Both problems are in need of being addressed in many cities around the world, not just in London. This is not to say that the riots reduce to public policy choices such as spending cuts in services (or to a debate on them). A police culture that does not respect law or citizens is unacceptable in a free society. A police officer who ignores department policy and even law to push a citizen beyond what is right and lawful is just as much of a thug as is the teenager who throws rocks at store windows in order to steal a plasma TV. To be sure, a youth culture of utter disrespect for others is also unacceptable, and it would be good if citizens would stand up to such thugs. Standing above both the police and teenage self-vaunted bullies are the people who sought to march in peace to point to the possible injustice of the initial killing. My point is simply that those people and their message were too quickly forgotten in the public uproar about greed, selfishness and the slow police response.

Therefore, rather than point to greed and selfishness exclusively, I would recommend that the investigation by the IPCC be expanded to look at whether the London police department has a pattern of abuse of citizens. That the department was inadequate in responding to the first riots suggests a culture of incompetence, and such a culture can easily go with an unethical culture. Where there is smoke, there is usually fire too—meaning they may not have only been in the cars and buildings. Riots do not pop up out simply from greed, which is more or less a constant in human nature. Nor do selfish people wake up one day and start rioting because they are suddenly more selfish. Rather, specific injustices fomenting resentment and frustration are much more likely to spark violence (which in turn can enable kids and adults to steal and destroy property even as ends in themselves).

I am not denying that people are greedy. In fact, emphasizing justice, especially in terms of benevolence, can serve as a constraint on greed! Along with actively valuing justice, people can have a low tolerance for injustice when accountability seems compromised or utterly corrupted by power-aggrandizement. Of course, two wrongs don’t make a right even where an injustice is the spark; the initial march could and should have remained peaceful.  Non-violent non-cooperation—including giving a corrupt police force the cold shoulder, actively ignoring police on their beat as outside society—would do more to make the sordid presumption of assumed power transparent.

Click to add a question or comment on whether greed or justice motivated the London riots.


The Huffington Post, “Questions Over Duggan’s Death as Tension in London Remains High,” August 8, 2011. http://www.huffingtonpost.co.uk/2011/08/07/questions-over-duggans-de_n_920629.html

The Huffington Post, “London Riots,” August 9, 2011. http://www.huffingtonpost.co.uk/2011/08/09/london-riots-450-arrested_n_921816.html

Ravi Somaiya, “After Riots, Conflicting Answers as to ‘Why’,” August 13, 2011. http://www.nytimes.com/2011/08/14/world/europe/14looters.html?_r=1&hp

Sunday, August 7, 2011

Employing Smokers: Economic, Political and Social Aspects

Hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee and Texas (among others), stopped hiring smokers in 2010 and more countries were openly considering doing so. Paul Terpeluk, a director at the Cleveland Clinic in Ohio, said, “The trend line is getting pretty steep, and I’d guess that in the next few years you’d see a lot of major hospitals go this way.” Indeed, this could come to be the case around the world. Various factors impact any comprehensive evaluation of a hospitals' policy against hiring smokers. The matter is therefore more complex than one might assume at first glance.

According to The New York Times, one out of five Americans were smokers in 2010. Nearly three out of ten Europeans were smokers as of 2004. Even though Americans smoked less than their counterparts in Europe, smoking remained the leading cause of preventable deaths in America. Employees who smoked each cost, on average, $3,391 more a year for health care and lost productivity. In terms of health insurance premiums through work, hospital administrators barring smokers argue that it is unfair for employees who maintain healthy lifestyles to subsidize those who do not. However, why then stop at smoking?

“There is nothing unique about smoking,” said Lewis Maltby, president of the Workrights Institute, who has lobbied vigorously against the practice. “The number of things that we all do privately that have negative impact on our health is endless. If it’s not smoking, it’s beer. If it’s not beer, it’s cheeseburgers. And what about your sex life?” Maltby is essentially pointing here to the increased control that employers would have over their employees in their private lives away from work. Another example of this is the Walmart policy wherein employees are fired if they smoke pot in their own homes, even if no impact on their work exists. There is an important issue here that may be missed by the popular media.

Should contracting one's labor give the other party the right to dictate what one does apart from one's labor? One might counter that a person is not forced to work for Walmart (and smokers are not forced to apply to work at hospitals). However, if the trend-line is as steep as Paul Terpeluk avers, the issue could rather quickly become whether smokers are able to find work at all. If being employed is essential for one's survival—especially if government social nets in countries like California are “downsized”—smokers may be forced to give up smoking or starve. Of course, it goes without saying that continuing to smoke could also result in death.

In the early 1990s, after large companies like Alaska Airlines, Union Pacific, and Turner Broadcasting excluded smokers from applying, twenty-nine of the American states and the District of Columbia passed laws, with the strong backing of the tobacco lobby and the American Civil Liberties Union, that prohibit discrimination against smokers or those who use lawful products. Some of those republics, like Missouri, made an exception for health-care organizations. The inclusion of the "lawful products" language is to say that employers should not be able to discriminate against the use of products that are in fact perfectly legal. That is to say, in a free society, people have the liberty to consume what they wish as long as the products are legal. Walmart would still be able to screen for pot use outside of work, though privacy issues still pertain. Furthermore, Walmart could be charged with attempting to perform a police function. It could be argued that it is not for Walmart managers to investigate whether individuals with whom they have contracted for labor are breaking the law outside of that economic relationship. If this is so, then perhaps companies should not be allowed to investigate what citizens are legally doing in their lives outside of the commercial relationship. However, the companies could point to their increased health-premium costs as justifying an interest in any unhealthy consumption, which could include food as well as smoke.

One means of grabbling with this complex ethical, economic and political topic is to widen the scope in order to raise the employer-centered system of health insurance as suspect. If there were one huge insurance pool in a given country or Union, then the pooling would essentially reduce the impact of unhealthy products because a greater variety of lifestyles would be pooled, hence reducing the overall risk. Of course, doing something unhealthy on a regular basis could still justify higher premiums for particular persons even within such a pool in order for there to be less subsidizing between people.

My main point is that relying on employers to exclude people on the basis of unhealthy consumption may not be the way to go; it could involve holding survival ransom by withholding employability. Consider, for instance, the number of homeless were apartments only made available to non-smokers (not just proscribing smoking in the apartments!). It could be argued that the risk of fire in an apartment building increases even if some tenants are smokers because, as with any addiction, boundaries (such as “smoking outside only”) tend to go by the wayside under flimsy (i.e., convenient) rationales. Indeed, it could be argued apart from the physical health element that there is value in living in a non-addicts-only apartment or condo complex. Such a residential society would doubtless be qualitatively different from those that include alcoholics and smokers. In short, the matter of smoking in society is indeed rather complex.

Click to add a question or comment on whether companies should be allowed to exclude smokers from employment.


A. G. Sulzberger, “Hospitals Shift Smoking Bans to Smoker Ban,” New York Times, February 10, 2011. http://www.nytimes.com/2011/02/11/us/11smoking.html?_r=1&ref=todayspaper