The Veil of Ignorance: Windsor v. DOMA

            The Defense of Marriage Act (DOMA), signed into law by Bill Clinton in 1996, has long been the bane of LGBT activists. This law, of course, defines marriage as between one man and a woman. Section 3 of DOMA bars the federal government from recognizing same-sex unions, even if said unions have been legalized by individual states. As well, this law determines that the word ‘spouse’ in all legislation shall be defined narrowly as a partner of the opposite sex. 1,138 federal programs have marital status as a criterion in determining eligibility for benefits, according to the Government Accountability Office. Thus, same-sex couples are unable to jointly file taxes or declare bankruptcy, and are ineligible for certain social security benefits and access to health care.

            John Rawls, in A Theory of Justice, introduced the concept of the “veil of ignorance.” He wrote that when formulating policy, one must remove all personal biases and consider the policy from the perspective of the lowest strata of society – those that will be affected these decisions.

            The Obama administration, recognizing the explicit discrimination based on sex and sexual orientation in Section 3, announced on February 23 that the Department of Justice would no longer defend the law’s constitutionality. The President noted two cases in particular that changed his perspective on the DOMA. One case is not only a convincing legal argument, but also contains a poignant human back-story that fully exhibits the costs unjustly borne by those adversely affected.

            Edie Windsor and Thea Speyer met in 1963 in Greenwich Village – an era when public attitudes towards homosexuality were more hostile than the present day. From all accounts, they went together like peas and carrots. In 1967, Thea popped the question and Edie accepted. However, opportunities for these two women to have their union officially recognized were limited – in the same country that embraced the Kardashian/Humphries sham and Britney Spears’ (among many others) short-lived Vegas marriage.

            Complicating the matter was the deterioration of Thea’s health. At age 45, Ms. Speyer developed MS, after which she was confined to a wheelchair. Edie took on the role of primary caretaker for Thea in addition to that of a supportive partner. In 2007, the pair married in Toronto, putting a capstone on their relationship after an engagement that lasted 40 years. A short movie about their mutual devotion, relationship, engagement and marriage was made: “Edie & Thea: A Very Long Engagement.” New York State recognized their marriage, but the federal government did not. Sadly, Thea passed away in 2009 due to progressive paralysis brought about by MS. Deprived of her partner, Edie suffered a heart attack shortly thereafter, and was diagnosed with a chronic heart condition.

            Naturally, Thea left her estate to her lifelong partner and wife. Under federal law, a spouse does not generally owe estate taxes on his or her inheritance from the deceased. However, the federal government levied estate taxes in the amount of over $363,000 against Edie in accordance with the Defense of Marriage Act.

            Edie refused to take this penalty lying down and had the fortitude to take up her own cause. With her movie and extensive documentation, she is certain that the federal government will affirm her partnership as what it was: a marriage. Ms. Windsor filed suit to recover the estate taxes she paid, plus interest. Her most recent legal victory occurred on June 6, when the District Court from the Southern District of New York found the DOMA to be unconstitutional.

            The court’s ruling rested on a straightforward constitutional amendment and tenet of basic human decency. The Fifth Amendment provides equal protection under the law, and is violated by Section 3, which overtly discriminates, with a real economic impact, on the basis of sexual orientation. Sometimes, I really wonder if conservatives stopped reading the Bill of Rights after the Second Amendment…

            Even the Bipartisan Legal Advisory Group, commissioned by House GOP leadership to defend the DOMA, conceded the obvious: if Speyer had been married to a male, the estate would have passed to him without a federal tax.

            Since the June 6 victory, Edie’s legal team – which includes the firm of Paul, Weiss, Rifkind, Wharton & Garrison, the ACLU and the NYCLU – has petitioned to have the case heard by the Supreme Court instead of the Court of Appeals for the Second Circuit. Edie’s health remains fragile, and she fervently desires to have her questions answers and taxes returned before she passes.

The petition makes several compelling arguments and counter-arguments to the opposition. The DOMA represents the first time the federal government sought to regulate a marriage’s validity, a matter traditionally left to the states. As well, the DOMA has no impact on heterosexual couples, so it can hardly be viewed as a disincentive to heterosexual marriage. The contraception debate, where a bunch of men determined policy affecting women’s reproduction and health, shows the extent to which flawed rationale proliferates. Courts have produced different results in Section 3 DOMA lawsuits, with six courts equally split between affirming and denying the law’s constitutionality.

            The most artfully argument employed by Edie’s team is to cite a quote that Chief Justice Roberts also referenced in his ruling on health care. The Chief, and in turn Ms. Windsor’s team, cited an excerpt from an opinion from 2010, which argued that while  “legislative novelty is not necessarily fatal,” sometimes “ ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” Imitation is the highest form of flattery, or in this case, irony.

            After recognizing the inherent inequities in Section 3 of the DOMA, President Obama's support for the LGBT community has not abated. On Good Morning America, he declared that he believed couples of the same sex should be able to get married. He credited the open-mindedness of his daughters, whom have friends with homosexual parents, as a reason for his evolution. In addition, he spearheaded the repeal of DADT, which allows gays and lesbians to serve openly in the military. 

            The upcoming election is a choice, not a referendum, and decisions will be made on matters other than just the economy. In the spirit of comparative disclosure, let’s investigate which positions Mitt Romney has held on this issue. In 1994, he promised LGBT that he would “fight for full equality” more than Ted Kennedy. As Governor, he sought to block gay marriage after it was ruled legal by the state’s highest court, yet managed to alienate both sides, simultaneously displeased with either his lack of tolerance or lack of bigotry. During the primary season, Mitt championed the need to enforce DOMA and announced his support for an amendment to the Constitution to ban gay marriage. However, he has recently referred to gay marriage as “a state issue.” The GOP nominee has also signed the National Organization’s for Marriage stringent five-part pledge which holds gay marriage as anathema.

Bottom line: he’s no friend to equality. He lives behind a veil of ignorance of an altogether different nature than the one Rawls championed.

And he’s no friend to Edie. 

Potential Veeps Write the Darndest Things

          Bobby Jindal just couldn’t help himself. While burnishing his veep credentials on a shadow campaign (along with Tim Pawlenty), he made the most of Independence Day by posting an op-ed diatribe on RedState. This particular piece – besides sounding like a macho Mitt Romney selection – serves as a right-wing list of talking points in regards to the ACA, so I’ll include most of Jindal’s text while picking it apart. Emphasis added by yours truly.

As we celebrate our nation’s birthday this week, it is important to remember and teach our children the Founding Fathers were declaring our independence, not creating a culture of dependence. (They also protested unfair taxation, but that is another story for another day.) This is an especially important lesson, given the Supreme Court’s ruling last week on Obamacare.

The reality is that the Founding Fathers were doing a LOT of things, not blindly and repetitively trumpeting their love of freedom.  I find it particularly annoying that Conservatives get away with claiming some sort of inviolable link to the Founding Fathers in the same manner by which each Pope succeeds St. Peter. The truth of the matter is that the Founding Fathers said a lot of things, many of which don’t seem to resonate with GOP talking points:

"I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."

                                                                                    -Thomas Jefferson

“There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by … corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses."

                                                                                    -James Madison

Funny how that part of the Founding Fathers’ message failed to make its way into the GOP platform…Back to Jindal:

The ruling was both a disappointment and a blow to our freedoms. As we get further away from the ruling, reality will dawn on people, and we will be right back to where we were. The American people did not want or approve of Obamacare then, and they do not now. 

            Earlier this year, Jared Bernstein, economist and Senior Fellow at the Center on Budget and Policy Priorities, wrote a fine piece discussing the difficulty of ascertaining public opinion on such a complex piece of legislation. Notwithstanding, 85% of Americans agree on coverage for those with pre-existing conditions, 68% approve of children remaining on their parents’ plan until age 26, and 77% believe that the Medicare prescription drug coverage gap should be eliminated – all provisions of ObamaCare. Moreover, the Kaiser Foundation has found that a majority of Americans want the attention of politicians to return to more urgent, economic matters.

The President promised us our premiums would go down $2,500 per family per year if we passed his reform; family premiums increased 9 percent last year...

The President promised us he wouldn’t raise taxes on middle class families making less than $250,000 a year; Obamacare raises taxes on health plans, medical devices, prescription drugs, and employers, and 75% of the individual mandate tax will fall on the middle class. Over 20 million individuals will remain uninsured, and health care spending will be higher than it would have been if the law had not passed.

             To blame the ACA for an increase in family premiums before the law has been fully enacted is ludicrous. It’s simply not applicable. This strategy to blame Obama for things that cannot possibly be construed as his fault is prevalent in the modern GOP. Exhibit A: Romney condemns Obama for job losses that took place in his first few months in office – well before his policies went into effect.

            Where Jindal gets the notion that 75% of the individual mandate tax will fall on the middle class is unknown, but it is certainly misleading. Chief Roberts, in his majority opinion, noted than an estimated 4 million people would pay the penalty by failing to get insurance. This number is certainly insignificant compared to the vast number of Americans that will receive coverage under the terms of the ACA.

07/10/12 Update: Politifact has rated the claim that  "75% of individual mandate tax will fall upon middle class" as false.

            The Governor’s chutzpah in recognizing that ObamaCare fails to cover the entire population is hypocritical to the core. Jindal is refusing the Medicaid expansion that will allow for more citizens of Louisiana who need care to receive it. In addition, the GOP has continued radio silence on their health care plans, giving no brainstorms as to how more coverage will be attained.

Amazingly, facing the greatest economic recession since the Great Depression, President Obama chose to create a new entitlement program when we cannot afford the ones we already have. Republicans like to go on television and say we are borrowing from our children’s and grandchildren’s future. We can throw those talking points out; we are hurting ourselves now. You know we are in trouble when the German Finance Minister rebuffs President Obama and basically tells him to clean up his own mess before offering advice to others. Even the Europeans feel they have the moral high ground to tell us to tackle our own debt problems; that’s like the town drunk telling you that you have a drinking problem.

            Labeling ObamaCare as a new entitlement program makes for a crisp sound byte, but fails as an appropriate characterization of the law. The ACA does not meet the parameters of an ‘entitlement program’ such as Social Security. While we’re on the subject, the negative connotation associated with ‘entitlements’ is startling. Entitlements are earned benefits that people deserve after paying into these systems over the course of their employment.

            Jindal’s attempt to claim the economic high ground by referencing the German Finance Minister is equally obtuse. Republicans continue to champion the same austerity measures embraced by the European Union, particularly Germany, that have ravaged Euro zone economies.

Opposition to Obamacare will escalate for one simple reason; Obamacare is the most unpopular when people are thinking about it. Then-Speaker Pelosi said they had to pass the 2,000 plus page bill so we could find out what is in it. The President promised it would become more popular the more people learned about it.

          I’ve already discussed how Jindal’s assertion as to the unpopularity of the ACA lacks a solid factual basis, so there’s no use beating that dead horse. However, this excerpt is especially telling since Jindal seems to implicitly prioritize popularity as the basis for a socially beneficial law. Is popularity really the priority of health care reform, or is it the betterment of costs and outcomes of the system?

The Supreme Court should have protected our constitutional freedoms, but remember, it was the President who forced this law on us. I congratulate the Supreme Court on one thing; they were far more honest about Obamacare than President Obama was. They rightly have called it what it is – a tax. The Supreme Court has done something new; they have declared that President Obama can use the taxation power of the federal government to compel behavior. The federal government can even tax the lack of behavior. What’s next? Taxes on people who refuse to drive Chevy Volts or eat tofu?This is ridiculous.

          To wade into the realm of technicalities – technically, the Supreme Court did not call ObamaCare a tax. The individual mandate penalty was not even defined by the Court as a tax. Rather, the SCOTUS upheld the mandate by way of Congress’ ability to tax – a small distinction, but one worth noting, all the same. In fact, the Chief Roberts stated that if the penalty were higher than the cost of purchasing insurance, the mandate would be unnecessarily coercive and act so as to compel behavior.

            Jindal then rehashes an argument propagated by Justice Scalia, and in turn, dismissed by Justice Gisburg: the broccoli horrible. This comparison, which seeks to compare the market for health care and the market for tofu, is not analogous and irrelevant. One is a market in which all individuals have to enter into at some point in their lives, and the other is a market frequented primarily by vegetarians and other groups of hippy liberals.

Success used to be measured by how many people we could get off the government dole, but now, under President Obama, we measure success by how many people we can get on government programs. Indeed, food stamp rolls have increased by 70 percent since 2007, and yet the government is spending millions of taxpayer dollars on advertising and encouraging parties to enroll even more.

          Food stamp rolls increased as a result of the recession. To most reasonable people, this would seem logical. Yet again, Jindal seeks to lay blame for the utilization of necessary benefits during an economic downturn at the President’s feet. People need government assistance program when the economy slides and they lose their jobs. What is Jindal’s solution?

 We have to decide whether we want to revive our economy by growing the private sector or expanding the public sector, to continue our culture of self-reliance versus a culture of dependency, to provide our children with opportunity or a sense of entitlement, and to pursue the American model or give in to the European model.

         During the Great Depression, the American model was that the government is the spender of last resort. Keynes preached and FDR implemented stimulus that enabled an American economic recovery. When businesses are sitting on record amounts of profits, yet are not spending, the government needs to fill the gap. Otherwise, periods of meager growth will be the best-case scenario. Sound familiar?

Here is the crazy part – the federal government cannot pay for our existing entitlement programs. 

Earth to Jindal: Social Security is fully solvent until 2038, and afterwards projects to pay out 75% of its benefits.

Democrats are already attacking Republicans for turning down free health care. Here is a news flash. All of this government spending is not free. It is our money they are spending; it is our future they are destroying; and it is really not that far into the future.

          The Governor overlooks that this is money that is being spent on the health of the residents of Lousiana. For the first five years of the ACA, this Medicaid expansion is funded fully by the federal government at no cost to the states.

I’ll accept the point that government spending is not free, but in the United States, the government spends money. Are the nation's health and wellness not worthy expenditures?

Clearly, Jindal is willing to draw his line in the sand just to make a point at the expense of the health of his constituency.

ACA Aftermath and the Bitter Tears of Victory

“One more such victory will utterly undo me” – King Pyrrhus of Epicurus (279 BC)

            There is no more succinct summary of Supreme Court’s ruling on the Affordable Care Act than the above quote.

            On Thursday, the SCOTUS upheld the ACA by a slim 5-4 margin, with Chief Justice Roberts serving as the surprise swing vote. The cost of this victory may well be the presidency, legislation from the New Deal and Great Society eras, and future progressive attempts for government solutions

The nuances and legalese employed by the Court’s conservative justices set unprecedented limits on the role of the federal government and inappropriately re-brand the individual mandate in a manner that distorts its essence and intention.

            The Court ruled on four matters in National Federation of Independent Business v. Sebelius. The first issue was whether the case could even be heard under the Anti-Injunction Act, which holds the constitutionality of a tax/penalty cannot be challenged until such a time when one must pay it. Another question answered by the court was the legality of the Medicaid expansion found in the ACA.

            The undisputed heart of the case concerned the individual mandate. On this matter, the court issued rulings on the constitutionality of the mandate and whether or not it could be removed from the law with other parts remaining intact – the mandate’s severability.

            Chief Justice John Roberts authored the majority opinion of this landmark case, joined by liberal Justices Ginsburg, Sotomayor, Breyer, and Kagan. Surprisingly, the Commerce Clause, which gives Congress the ability to regulate interstate commerce, did not serve as the rationale for the mandate’s legality. Rather, the mandate was found to be constitutional under Congress’ broad power to tax to fund social welfare programs. As such, the mandate represents a tax on the microscopic percentage of Americans who will choose to forego purchasing insurance though they can afford it.

            Prior to this judgment, Obamacare was attacked as a coercive socialist policy and gross overreach by big government, criticisms sharply directed at the individual mandate. Four conservative justices (Scalia, Kennedy, Thomas, and Alito) certainly agreed, voting that the mandate was unconstitutional and that the ACA (including Medicaid expansion) should be rejected in its entirety. The dissent, authored by Scalia, decried the ACA as inflexible health-care regulation that is inoperable without the (unconstitutional) mandate. Justice Kennedy, thought to be a possible swing vote, wrote in a separate dissent that the rewriting of the mandate as a tax is an unprecedented move – interpreting the statue in something other than Congress’ wording.

Precedent. Wouldn’t it be nice if the dissenters showed some respect for it in their rulings?

            In Wickard v. Filburn, the Court ruled that the Commerce Clause enabled the federal government to limit the amount of wheat grown for individual consumption by a farmer. Yet, Chief Roberts used a slippery slope argument to justify the unconstitutionality of the mandate under the Commerce Clause. In the Chief’s eyes, if the federal government can force you to buy health insurance, a future Orwellian Vegetarian Party may mandate the purchase of broccoli – an affront to all patriotic, red-blooded, red meat-eating Americans. Of course, this is the Roberts Court – which ignored precedent regarding the limitation of corporate political expenditures – so we ought not expect too much of them.

The net result is that a majority of the Court found the mandate to be unconstitutional under the Commerce Clause. Chief Roberts' ruling implies that federal government overstepped its authority by requiring Americans to purchase health insurance. This question was at the political heart of the case, and the decision depicts a “rigid reading of the Clause [that] makes scant sense and is stunningly retrogressive” according to Justice Ginsburg.

 Justice Ginsburg’s concurrence (also a partial dissension) dissects the dissent of Scalia and the Chief’s unwillingness to recognize the Commerce Clause as a basis for the ACA’s legality. Simple summary of her argument:

The health-care market has distinct characteristics of interstate commerce. Spending on health care accounts for nearly twenty percent of the US economy and is set to double within the next decade. As well, this is a market that everyone is guaranteed to enter. Simply, everyone gets sick and needs to see a doctor – this is an inevitable fact of life. Uninsured Americans are not refused care, and their costs are borne by all those who do have insurance, accounting for $1000 of premiums for family plans per annum.

While conservatives mourn Roberts' ruling, inquisitive minds recognize the Chief’s shrewdness. Public approval of the Roberts Court currently rests at 44%, down from 80% during the 1990s.  Another threat to this court’s legitimacy: three quarters of Americans believe their votes are motivated by political ideologies.

Chief Roberts was afforded – and took – the opportunity to preserve the image of his court by siding with the four liberal justices. But his ruling did not demonstrate his sudden conversion to logic and precedent. A more appropriate analogy would be that Roberts is preserving his judicial capital in the manner in which Muhammad Ali used the rope-a-dope strategy to preserve his energy for the inevitable counterattack on George Forman. The next season of this legal saga – ‘Revenge of the Roberts’ – is likely to star retrogressive rulings on gun control, voting rights, campaign finance, and even the Civil Rights Act.  Sadly, these cases and decisions will receive much less media coverage than the ACA.

Making the assumption that Roberts’ ruling was (indeed) politically motivated – while additionally serving as a façade of his court’s legitimacy – it is instructive to consider the political ramifications. The unconstitutionality of the ACA would’ve been a double-edged sword for the GOP. Invalidating Obama’s largest – but by no means only – accomplishment would have been demoralizing to liberals, but conservatives would then have to reveal their plans for healthcare, which, um, do not seem to have captured the hearts, minds, or even the attention of the electorate. Wonder why that is?

It is unlikely, given Governor Romney’s manic obsession with the economic management of the country, that health care will be an important topic in the presidential election. Congressional races are a completely different story, especially considering that the Ryan Budget vs. ACA question featured prominently in special elections over the past few years. In all likelihood, the ceasefire on health care on the presidential level may negatively impact Democrats’ chances in the House and Senate, for polling shows that a majority many support individual aspects of the act, but also reject it as a whole. Messaging (as always) from the left on health care has been a failure.

            Tax. No word, not even flip-flopper, carries a more negative weight in American politics. By re-labeling the individual mandate as something that it isn’t, Roberts enables the right to attach this toxic three-letter political epithet to President Obama. The individual mandate as a tax is not only a beneficial GOP talking point, but also has relevance to the repeal process. Taxes can be repealed through a simple majority through the reconciliation process rather than a filibuster-proof 60-vote majority.

The final word: despite the court’s reprieve, the ACA relies on a Blue November to be fully enacted.

If not, at least all those smarty-pants moving to Canada to protest the Supreme Court’s ruling might go back home…