Letter from america: BIDEN'S TWO BIG OBSTACLES

A second perceptive letter from a friend in Oregon:
 
“Well, here’s hoping it’ll be all over soon.  Biden has been doing his best to steer a delicate path between Progressives who would like 'Medicare for All' and moderates/independents who have no desire to lose their existing insurance, rotten and expensive though it might be.  The real issue is will the Democrats be able, come the time, to implement any of their policies?

The first obstacle is that the Democrats need to win four additional Senate seats to take control - not so easy when you realize how skewed is Senate representation.  Wyoming, with a population of less than one million, and other rural small states, is given two Senators to elect as does California with a population of just under 40 million, so the more urbanized States which typically support federal government programs are grossly under-represented.  And not all Senate seats are up for election this year; senators serve for six years.  If Republicans retain control of the Senate, under majority leader Mitch McConnell, then we are looking at another four years of gridlock and blocked legislation. So watch the states of Arizona, Colorado, Maine and North Carolina for election results.

The second obstacle is far worse, though slow acting. It's called the Supreme Court.  In what I call a normal country, parliament  debates and passes legislation which then becomes the law of the land;  if you, the voter, do not like this legislation then, when the time comes, throw out the representatives and elect a different set.  It is often said the ability to do just that gives democracy the edge over any other political system. 

Unfortunately, in the U.S. it does not work that way because of the Constitution.  An excellent example is the precarious fate of the Affordable Care Act (ACA), otherwise known as Obama Care.  This health care insurance legislation was originally passed by the Democrats, after a huge struggle (won by one vote in the Senate). It benefits at least 20 million people by enabling them to have subsidized insurance and get medical care.  After the Senate passed into Republican hands there were many efforts (about 50 attempts) made to repeal the law.  John McCain, dying from a brain tumor a couple of years ago, once saved the ACA by voting against his Republican colleagues. 

The ACA survived, although somewhat modified by the removal of something known as the individual mandate.    Everyone lacking health insurance (any kind, private, public, whatever) had to pay a small fee to help support the costs of this provision.  Congress cancelled this unpopular mandate.
 
Then certain Republican states which did not want to expand Medicaid, the program for the really poor, took the informal mandate to the courts claiming it was unconstitutional and won.  How can that be?   Article 1 of the Constitution, section 8, defines federal powers at some length:  Congress can collect taxes, coin money, build roads, and establish rules for naturalization and so on, lots of good stuff.  However, you will not be surprised to learn that this venerable document does not mention the regulation of health care insurance. The power to do this if you are a constitutional Originalist (a judge who holds that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted”) therefore devolves to the States.  Chief Justice John Roberts saved the ACA a few years ago by declaring that the mandate is the same as a tax so falls under Article 1.  But with the mandate eliminated, that argument is no longer valid.

All Democrats and fair thinking people are outraged by Trump’s recent nomination of Amy Coney Barrett to the Supreme Court since Mitch McConnell refused to even consider Merrick Garland nominated by Obama nine months before the 2016 elections.  Now a Republican Senate have used Trump’s last days to push Barrett onto the Supreme Court, replacing the progressive Ruth Bader Ginsberg, because they had the votes to do it. 
 
Why do we care?  Because Barrett is a dedicated conservative and, like her mentor Judge Scalia, an Originalist and a Textualist (someone who ignores the intention of the law, the problem it was intended to remedy, or significant questions regarding former legal judgements), so if the original document of 1787 does not mention a particular power of the federal government, then it doesn't exist, does it?  The Senate held four days of hearings with Barrett but it was pretty pointless because she refused to give her views on anything, including previously decided cases.  This got tedious: all the non- answers were along the lines of  "I can't  say because somebody might predict how I would rule".  And, of course, she refused to express any views on climate change, which she described as a controversial political question.

I think you get the general picture: her conservative views will also be expressed in opposition to LBGTQ rights, environmental legislation etc.  Her appointment to the Court will solidify a conservative majority of 6-3.  The situation for Biden and the Democrats (if they win both houses) might be compared to that of Roosevelt in the 1930s when he was struggling to enact progressive legislation such as social security.
How did we end up in this situation?    Congress has become very dysfunctional and has hardly passed any legislation in the past four years, apart from Trump's big tax cut. The Constitution (Article 1, section 8) states quite clearly that Congress shall "make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers".   Yet it seems increasingly that Congress prefers not to make any laws and wait for the courts to decide critical issues such as gay marriage or immigration laws.  There always exists a large minority of people or organizations who prefer to file a court case when they are unhappy with some outcome.  This is not a happy way to run a country.

Personally, I think the social networks such as Facebook and Twitter share much of the blame.  It used to be that opposing political sides got together informally,  breakfast meetings, and hammered out some compromise about pending legislation.  That useful activity does not occur anymore, because the mere fact that somebody was talking to the other side would get out and there would be cries of rage from the extremists on both sides.

Is anything fixable?  It would take very radical action and a willingness to enact another couple of Amendments to the Constitution.  State’s Electors in the Electoral College matter more than the popular vote for President in the election. They should be abolished as an anachronistic relic from the 18th century.   Can you imagine, presidential candidates hardly visit, or care about, the issues of California's nearly 40 million people while they go to Ohio twice a week?   The Senate composition should be changed to more closely represent the size and population of each state. For example, each state gets one Senator plus an additional number of Senators based on the size of the state.

P.S.  I may send you a print copy of the Constitution, courtesy of the Oregon Historical Society”.

See also TheArticle  'Biden's Two Big Obstacles'  02/11/2020