Trey Gowdy Thinks Obamacare is Comparable to Segregation

The lunacy never ends.

It's bad enough that one of the two great American political parties has gone completely off the deep end, indulging in magical thinking that says it can reverse the results of the last presidential election simply by politically holding its breath. Now they want us to see their political temper tantrum as the equivalent of the Civil Rights movement.

In today's Spartanburg Herald-Journal, my representative, Trey Gowdy (R-SC), said the following about the government shutdown and the Tea Party obsession with derailing the Affordable Care Act:

“Some people might say that we should go along with what the President wants, and the Supreme Court ruling, but I would submit that just because it's law doesn't make it a good law,” Gowdy said. “There was a time when it would have been unlawful for (Sen.) Tim Scott and I to sit-down at a restaurant and eat together. There are bad laws and those worth staying and fighting for and I happen to think this is one of them.”

It shouldn't be necessary to point out how utterly absurd this comparison is, but as George Orwell once said, "we have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men."

So let me state the obvious: a law that makes it possible for uninsured Americans to buy health insurance at a price they can afford is not comparable to segregation.

Gowdy postures as a man of principle, but anyone with an elementary understanding of what constitutes principles would understand the difference. Yes, the general idea (a law is not necessarily a good law) is true.

Everything else Gowdy says is despicable, an insult to everyone who fought to end segregation. Those people quite literally put their lives on the line to challenge a moral and constitutional injustice.

What has Trey Gowdy done?

Trey Gowdy, talking to a history class in his district. Hopefully
he did not tell them that Obamacare is like segregation.

He has refused to approve ongoing funding of the federal government because he insists on defunding a law he does not like.

And what has Trey Gowdy sacrificed for this "principle"?

He continues to draw his salary while hundreds of thousands of federal employees, many trying desperately to make ends meet, are furloughed and lose their incomes. He continues to enjoy the security of knowing that he and his family are well-insured if, God forbid, any health problems should arise, while he tries to prevent less fortunate people from having that same peace of mind.

A real profile in courage, that.

And what will happen if Trey Gowdy gets his way? Who will his principled stand help?

No one.

But he can be proud of having made a principled stand to free other people from the burden of having health insurance.

If Trey Gowdy were truly concerned with principle, he would take seriously the principle upon which our government rests: that our laws are the result of a process, one which was followed and ratified in every particular in the case of this law. It is not simply "what the President wants." It is the law of the land.

Trey Gowdy has every right--even the duty--to argue his case, to do all he can to convince Americans to elect representatives, senators, and a president who want to repeal the law. If he succeeds, people like me who favor the idea will have to accept repeal. Because we accept the legitimacy of the process.

But what he and his Tea Party cohort want is not to play by the rules, but to blow them up. They don't give a damn about process. If it does not serve their ends, they will manipulate it, undermine it, pervert it until they get what they want.

Their arguments failed to sway the Supreme Court, they failed to win the presidential election, they failed to gain control of the Senate, and they think none of that should matter. They should get their way regardless, because they are RIGHT.

After all, they think they are like the Civil Rights protesters.

The lunacy never ends.

John Roberts and The Case of Dred Scott v. Madison

Last March, I wrote a post about the Court's consideration of the health care law. My point then was that it was possible for a judicial victory to turn into a political defeat. That could still be the case, if the Court's ruling upholding it motivates the conservative base that is so viscerally opposed to the Affordable Care Act. Already, in an echo of the reaction to the Brown v. Board decision, some in the blogosphere are calling for the impeachment of Chief Justice John Roberts.

My major concern in the original post was that the Court's conservative wing would overreach, much like Roger Taney did in the Dred Scott decision in 1857. The temptation had to be great. The conservative movement is nearly unanimous in its rejection of the act, and even the so-called "moderate" swing vote, Justice Anthony Kennedy, was prepared to throw out the entire law.

It seems, however, that John Roberts was sensitive to that danger. Certainly he could have sided with the four conservative justices in this case. But he didn't. Why?

My good friend Bill Carleton wrote the following in a comment to my original post:

What you say reminds me of a CSPAN documentary I just saw about the workings of the Supreme Court. The current Chief Justice, John Roberts, is heard in a voice over, as the camera pans the portraits of prior Chief Justices, remember the lesson of Taney - don't be THAT man.

It would seem that Roberts thought exactly that. Taney's overtly political decision tarnished the reputation of the Court for years. By avoiding a 5-4 decision in which all 5 votes to overturn the greatest achievement of a Democratic president came from justices appointed by Republican presidents, Roberts may have avoided becoming THAT man.

But as observers on the right and left have noted, he did so in a rather odd way--by effectively agreeing with the dissenters on many of the substantive points, particularly on the matter of the Commerce clause. Some people see this as a stealth attempt by Roberts to set the stage for more significant limitations on the power of Congress in the future.

George Will, for example, argues: "Conservatives won a substantial victory" in the case. Since reformers have used the Commerce clause to expand government power since the New Deal, the argument goes, Roberts has served the larger cause by putting limits on the use of the Commerce clause, which Will, of course, thinks is all to the good.

Pamela S. Karlan, writing in the New York Times, sees the same thing but from the opposite political perspective. Karlan fears that Roberts "laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and Great Society."

In short, the argument is that in exchange for allowing this law to stand (barring a political decision by a future president and Congress to repeal it), Roberts has established the ground work for a revolution in constitutional law that might limit significantly the power of Congress under the Commerce clause.

If this is indeed Roberts' game, then instead of pulling a Dred Scott, he decided to pull a Marbury v. Madison. In the latter, Chief Justice John Marshall ruled against the short-term interests of his political party, the Federalists. As Gordon Wood puts it in Empire of Liberty, Marshall's early tenure as Chief Justice showed "his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court."

Federalists lost the bitter presidential election of 1800 to Thomas Jefferson, but in the lame-duck session of Congress between the election and Jefferson's inauguration, the now-repudiated Federalist majority passed the Judiciary Act of 1801, which outgoing President John Adams signed into law only weeks before he was to leave office. The law was a rather overt power grab--it created new circuit courts, and Adams immediately appointed Federalist judges to them. It was meant to preserve Federalist power in the judicial branch after the party had lost the Congress and the Presidency. In 1802, Jefferson's Republicans repealed the 1801 act.

In the meantime, one of the last-minute judges appointed by Adams, William Marbury, sued to receive his commission, which the new Republican administration had refused to deliver. Marshall was under a great deal of pressure. Federalists wanted him to rule that the Republican repeal of the 1801 act had been unconstitutional. Republicans warned that a blatantly political ruling by a Federalist judge would reveal the partisan nature of the Supreme Court and require Congressional action to rein it in.

Chief Justice John Marshall

Marshall's decision brilliantly solved his problem. He ruled that Marbury had a right to the commission, and that the Jefferson administration had no right to deny it to him.

So, Jefferson lost, right? Not really. Marshall also ruled that Marbury had based his petition for relief to the Court on a provision of the 1789 Judiciary Act, and that provision, Marshall said, was unconstitutional. Thus the Court had no power to order that Jefferson's Secretary of State, James Madison, deliver the commission.

So, Jefferson won, right? Not really. He thought the idea of judicial review was undemocratic, and said that if the Courts alone had the power to rule on constitutionality of laws, it "would make the judiciary a despotic branch." But since he had "won" the case on those grounds, Jefferson was put in the position of accepting--at least indirectly-- the validity of judicial review.

In the short run, Marshall gave the administration a political victory. In the long run, he established the precedent of judicial review, which is not explicitly stated in the Constitution, but is the greatest power the Court has. But not challenging the Jefferson administration directly, Marshall maintained the reputation of the Court and enhanced its power.

The parallels to what Roberts did last week are obvious. He too resisted the pressure of the political party that nominated him to the Court. He too handed that party a short-run defeat. He too (at least somewhat) rehabilitated the Court's reputation.

Whether or not he has also set the stage for a conservative judicial revolution, such as Will hopes for and Karlan fears, depends entirely on future Courts and future decisions.

But Roberts does seem to have decided--at least for now--that he'd rather be Marshall than Taney. We should all be grateful for that. But for George Will's hopes and Pamela Karlan's fears to be borne out, Roberts would have to some day pick up those judicial "weapons" and use them against the New Deal and Great Society.

For the record, though John Marshall effectively created the Court's power of judicial review, he served on the Court for more than 30 years after Marbury v. Madison and never used it to invalidate another law passed by the United States Congress. In fact, no Court used it for that purpose until 1857, when Roger Taney used it in the Dred Scott decision. Hopefully, John Roberts will remember that, too.

Let's Play "Name That Candidate!"

The following passage comes from a major address by the nominee for president of a major political party:

Whatever progress has been made we all accept.... there are certain principles that are accepted by substantially all of the American people. They cannot be treated as partisan principles. They are national policies. For instance, the policy of providing the farmer with a fair share of the national income is a national policy.... We say to you workers that the right of collective bargaining by labor's own free choice is not a partisan right. It is a national policy. The principle of setting a floor under wages is likewise an established principle. That floor should be raised as rapidly as our increasing prosperity permits... It is national policy to set a limit to the hours of labor. Whenever those hours are exceeded, overtime must be paid at the rate of time and a half. Social Security is a national policy. And so are old age pensions. Nobody has a patent on them. It is national policy to care for the unemployed.... It is national policy to care for the aged, the sick, the physically handicapped, the blind, and others who need our help.

I admit, this isn't an easy one. He did not go on to become president, so he's less well-known. So how about this question instead: which political party does he belong to, the Democratic or Republican?

Answer: The Republican Party.

This is from Wendell Willkie's final speech of the 1940 campaign, given over the radio, originating from a campaign rally in Madison Square Garden in New York City.

I came across this speech doing some research, and was somewhat dumbfounded when I read it. Even allowing for the real possibility that Willkie's support for all of these "national policies" might have been more rhetorical than real (after all, Paul Ryan today has the chutzpah to claim that his plan to end Medicare is really meant to "save" it), this is remarkable.

My first thought was the rather obvious one: can anyone imagine the Republican nominee in 2012 full-throatedly supporting all of these policies that were enthusiastically embraced by the Republican nominee 72 years ago in 1940?

To be fair, Willkie also said things that could easily have come from Romney's mouth in this campaign: "We believe ... that in order to protect [these benefits] and to extend them it is necessary to have a government that is financially sound."

In fact, Willkie's defense policy statement is almost exactly the same as Romney's: "All of us believe in the need for a powerful national defense. But our administration ... would have it so powerful that no aggressor would ever dare or seek to strike."

Romney has repeatedly said in this campaign: "I will insist on a military so powerful no one would ever think of challenging it."

Those similarities notwithstanding, it is remarkable to see how different the rhetoric is.

Willkie supported collective bargaining, while Romney has praised Gov. Walker's and Gov. Kasich's efforts to limit collective bargaining in Wisconsin and Ohio.

Willkie supported not only the concept of a minimum wage, but anticipated increasing it, while Romney is against an increase and in the past has proposed at most indexing it to inflation (which would have the effect of never increasing it in fact). Some Republicans (e.g., Ron Paul and Tea Party leader and former congressman Dick Armey) even favor abolishing it.

Willkie talks about caring for the unemployed, while Romney has opposed extending unemployment benefits and has even said he'd like to see "reform of our unemployment system, to allow people to have a personal account which they're able to draw from as opposed to having endless unemployment benefits." In other words, he would privatize it and end any government responsibility for the unemployed.

Willkie says it is "national policy" to care for the sick, but Romney would repeal the Affordable Care Act and has proposed no national policy to advance the cause of providing health insurance for the uninsured.

Willkie supported Social Security and old age pensions, while Romney would increase the eligibility age for both Social Security and Medicare.

The unavoidable conclusion is how far to the right the Republican Party (and, to some extent, the Democratic Party) has moved over the last 70 years, with most of that rightward movement having taken place in the last twenty years.

It has become commonplace to note that Ronald Reagan, the nominee in 1980, and Richard Nixon, the nominee in 1968, would be too liberal for today's Republican  Party. Turns out, Wendell Willkie in 1940 would be, too.