At Salon, a Democratic speechwriter discusses post-campaign negotiations (using the example of Chuck Robb vs. Doug Wilder in Virginia, a campaign he was involved with), and speculates over what kind of concessions Clinton may want the Obama campaign to make in exchange for peace. Here’s an interesting speculation:
A Major Platform Win. Namely, healthcare. Hillary needs to be able to make the case that her campaign had a substantive impact on the race. The best way to do that is to get to write the party’s healthcare plank in the platform. If Obama folds on the mandate issue, Hillary walks away with a policy win. Plus, this would please John and Elizabeth Edwards. Choosing Elizabeth to write the healthcare plank of the platform could appease both camps.
Obama’s stand against (some) mandates is fully as embarassing as Clinton’s stand on the gas tax holiday; this is a point that he can, and should, concede to Clinton once the primary is over.
The essay also points out that Democrats have come together after even worse primary-season splits than what we’ve seen this year, and done it surprisingly quickly.
That aside, I hadn’t realized that such post-campaign negotiations were so normal a part of the process; live and learn. Curtsy: Digby.
The fact that no one on Hillary’s campaign has spotted the takings issues in her individual mandates proposal is far more embarrassing — especially because it will probably sink health care reform upon judicial review.
I don’t support mandates without a fundamental revision of the role insurance companies play in our health care system. Otherwise, it’s like forcing people to pay for private schooling or private security and calling it “universal public education” or “public police protection”. Hell, even under a Medicare-for-all proposal (I think the first step along this direction is a merging of federal Medicare and state-level Medicaid), I’d like to give people the option to opt-out, but with a corresponding penalty to people who sign on at a later day, to prevent gaming the system. Some element of “double taxation” will remain, similar to public school/private school or police/private security in gated communities, but they’d at least get out of paying certain premiums.
Giving everyone who wants health coverage an alternative, government option is sufficient, in my opinion.
It’s not logical to assume that because they’ve never publicly discussed the issue, they’ve therefore never spotted it.
Could you expand on your argument regarding takings and the Clinton health plan? Or link to someone else expanding on the argument?
Normally, I’d agree. But there are three things that make me question it in this circumstance.
First, Yale’s law school curriculum differs from everyone else’s in one key respect: students are not required to take property to graduate. While they do have to take the subject with everyone else in Bar/Bri courses to pass the bar, the beauty of cram courses is that you forget everything that’s not directly relevant to your area of practice on your post-Bar trip. Consequently, the lack of emphasis at the very beginning of their legal career leads to a tendency to overlook property issues in actual legal practice. Sometimes this works out to Yale students’ benefit, which is what happened in the case holding that leases could be considered contracts and subject to contract law. But normally it results in Yale grads simply missing key property issues, at least in firms that don’t specialize in property law and closely related fields.
Second, what possible reason would they have for keeping quiet about it? They’ve been up front about why they think other objections to their plan are flawed. If they had seen it, then they’d operate under the assumption that their opponents have spotted the issue as well. Consequently, they would prepare some kind of response. Alternatively, if they’d seen it and understood that their argument couldn’t win (which they probably would have concluded), they’d alter the proposal to prevent themselves from looking silly.
While they may think they have a way to spin the media in their direction, I really don’t see how. Clinton could argue that Kelo and Lucas permits such takings, but 1) Kelo is incredibly unpopular, and 2) the conservative Roberts court ignores both the explicit meaning and the spirit of stare decisis whenever prior cases don’t support conservative interests. Because her plan isn’t exactly beloved by conservatives, a majority will probably draw a distinction between real and personal property, and then use that distinction to overturn any lower court’s decisions in her plan’s favor.
Not only would she lose on judicial review, but she’d also be giving conservative spin doctors uncut gems: conservative justices could not only separate themselves from the unpopular Kelo decision, but also uphold conservative interests at the same time. Ultimately, the media would probably make Scalia and his cronies look like heroic white knights. Given her justifiable paranoia about the vast right-wing conspiracy, it’s more likely that she just doesn’t see the issue.
Third, before I became a lawyer, I was a Hill staffer. I asked a Clinton staffer about this at a mutual friends’ birthday party a few months ago and, after some stunned silence, she said: “Huh.”
To be fair, it’s not my idea. A friend of mine works for a very high-profile conservative think tank, and is currently developing a white paper on the subject.
The argument is ultimately that forcing individuals to spend their own money on specified items constitutes a regulatory taking of personal intangible property. This holding would expand Lucas v. South Carolina Coastal to include intangible personal property, while limiting Kelo to real property — both of which would be a windfall for corporations.
Further, her plan raises a huge federalism issue. (But to be fair, Obama’s does too, which is why I’m only mentioning it tangentially.) While authority for the plan ostensibly exists under the Commerce Clause, the conservative courts have been restricting the scope of the Commerce Clause while expanding the scope of states’ police powers. The problem, though, is that neither candidate can implement health care reform at the state level due to ERISA. And once you get ERISA involved, it’s no longer just about healthcare — and you get every company in America against you.
The argument is ultimately that forcing individuals to spend their own money on specified items constitutes a regulatory taking of personal intangible property.
They could get around this in the same way they get around it in requiring individuals to have car insurance: don’t make it a requirement to have it, make having it a prerequisite for other, related, uses of public services. (For example, to use the school system, or the library, or the public greenspace.)
Lucas v. South Carolina Coastal involved the State of South Carolina burdening a private land owner in order to promote public (environmental) benefits. The US Supreme Ct. found that the regulation was so burdensome as to amount to the taking of private property for a public purpose without just compensation, in violation of the Fifth Amendment.
In contrast, the Clinton health plan amounts to requiring private citizens to buy health insurance to promote their PRIVATE benefit (and, yes, arguably to stop relying so heavily on publicly-financed safety nets). Thus, the program is akin to seat-belt laws and helmet laws; it burdens private discretion, but largely for the benefit of the person it burdens. Judges may find such policies unwise and unfounded, but judges haven’t found them illegal. I find little difficulty in distinguishing the Lucas case.
Moreover, the Supreme Court found no Constitutional impediments to requiring members of the public to pay for vouchers that private citizens could use to select their own schools. Assuming the nation musters the will to pass a national health care plan, even a judicial defeat as suggested here would merely cause Congress to switch to a voucher-type system.
Kelo v. City of New London is unpopular, especially among libertarian-types. And yet the Supreme Court adopted it. If Kelo-type intrusion on autonomy does not infringe upon the Constitution, I have difficulty seeing how a national health-care financing system would.
What federalism problems are posed by a national health care proposal that are not already posed by the Employee Retirement Income Security Act (ERISA) itself?
Robert:
First of all, this is not what the proposal calls for — which, again, suggests that no one spotted the issue.
Second, in terms of the legal analysis required by law students, you’re absolutely correct. The problem, though, is that justices aren’t law students — especially not the ones on the Supreme Court. Roberts et al. have repeatedly demonstrated that they will accept any half-assed argument if it enables them to overturn settled law in favor of conservative interests.
Third, how do you think that will play in the media? This line of reasoning will make her look like a stereotypical politican/lawyer who questions the definition of the word “is” — which will make Roberts et al. look like wise judges who cut through the b.s. when they reject that argument. (Not to mention the fact that it will bring the “should illegal immigrants get driver’s licenses” and forced vaccination debates back into the spotlight.)
Nobody:
First, you’re conflating medical care with health insurance. One requires individuals to pay professionals directly; the other pools risks. It’s why states and state courts do not treat certain forms of insurance (e.g., individual indemn.) the way that they treat other forms of insurance (e.g., CGL). I have only seen the phrase “quasi-public” used to describe health insurance connectors, but that may be the best term to describe how states view health insurance benefits generally.
Second, if memory serves, her proposal explicitly makes health insurance a public benefit.
Interesting analogy, but lawyers — and, more importantly, judges — probably won’t see it this way because the two types of laws spring from completely different legal traditions. Seatbelt and helmet laws are enacted pursuant to states’ police powers over public health and welfare. States’ powers to regulate insurance stem from the rights reserved to them under the 10th Amendment. The federal government has no police powers — it only has powers under the Commerce Clause. Which conservatives really, really despise. It has even more emotional resonance than abortion.
Now, SCOTUS can and will ultimately make its decisions based on politics. But legal training does lead to some knee-jerk reactions created by their legal training, and rejecting analogies between unrelated fields is one of them — especially in Con Law.
Of course no court has found federal individual mandates illegal — the federal government has never required individual health insurance mandates before!
However, plenty of judges have found state individual mandate plans a violation of ERISA and state constitutions with provisions virtually identical to the Takings Clause.
Huh? Individual mandates involve Fifth Amendment issues, while school vouchers involve First Amendment ones. I don’t really see how voucher precedent is relevant.
Besides, even if it were relevant, I can pretty much guarantee you that SCOTUS would focus on the “lack” of choice in the Clinton health care plan — while emphasizing the “choice” in school vouchers.
Assuming for the sake of argument that vouchers really have raised and settled Takings Clause claims, the problem is that, thanks to the Iraq War debt, implementing such a voucher system would require an enormous tax hike. (The people who said that Iraq is really about constraining social spending for a generation were right.) Do you really think Congress would “merely” do such a thing?
Libertarians, yes. Fortune 500 executives? No. They have enough power so that their property isn’t at risk — and the profits they stand to make from community development programs are enormous.
Remember, the justices on the court aren’t fiscally conservative in the libertarian “pro-balanced budget/minimize spending sense”; they’re fiscally conservative in the Bush “pro-big corporate interests” sense.
Huh? ERISA’s validity under the Commerce Clause has been established.
The problem is that, with the exception of ERISA, states regulate insurance. And if there’s one thing the Roberts Court supports, it’s state’s rights. If there’s a second thing the Roberts Court supports, it’s restricting the scope of the Commerce Clause.
The sentence beginning “It’s why states and state courts” should actually say, “Second, states and state courts…”
To borrow from McSweeney’s, my law school really should have offered “Cutting and Pasting Legal Lingo”, “4 A.M. Word Processing and the Law”, and “Cutting and Pasting II: Plural to Singular.”