Wednesday, November 9, 2011

The Health Care Tipping Point & Political Calculus

Today was a momentus day for health care reform because one of the nation's foremost conservative judges, Larry Silberman, wrote an opinion upholding the Affordable Care Act.  Judge Silberman is the second prominent conservative judge to uphold the health care law, as Judge Sutton from the 6th Circuit also wrote an opinion upholding the health care law.  This may yet to be a turning point at which it becomes safe for more conservative and moderate judges, like Anthony Kennedy, to side with precedent and uphold the health care law.

Now, here is the political aspect.  You may recall that some time ago Obama decided to request the Supreme Court to review the health care law sooner rather than later, setting up a possible election year showdown in the Supreme Court.  Many interpreted this through a legal lens, assuming that it was done because Obama thought he would win if he went for it now or didn't want to delay implementation.  Perhaps, but I see it differently.

Obama made a very short-sighted decision when he ordered the Justice Department not to defend the "Defense of Marriage Act"  because it opened the door for future Presidents to follow this precedent and refuse to defend laws they do not agree with.  Should Obama lose, President Romney or Cain(!!!) would now be able to use Obama's example as an excuse to refuse to defend the law.  Obama had to go for it now because there was no guarantee the next President would actually defend the law!  That makes this recent decision all the more important, because it may give health care reform much needed momentum to win now before the next President has a chance to sabotage it.

Monday, November 7, 2011

The Jerusalem Supreme Court Case - Not What You Think!

Today the Supreme Court heard the case on whether passports for children born in the city of Jerusalem should just say "Jerusalem" as they do now, or say "Jerusalem, Israel" as an act of Congress requires.  Many on both sides of the Israeli-Palestinian issue have been getting worked up about this (for obvious reasons), but this case actually has nothing to do with Israel or Palestine.  It's really about signing statements - yes, our old friend from the Bush administration, signing statements.

What basically happened is that the State Department has a policy of neutrality towards the status of Jerusalem when it comes to passports.  If you were born in Jerusalem, your passport simply said "Jersualem" as your place of birth.  Congress didn't like this policy and passed a law stating that passports should list people born in Jerusalem as having been born in "Jerusalem, Israel."  Bush (W) signed the bill but issued a signing statement that he would not comply with the passport provision because it encroached on the authority of the President in foreign affairs.

So here is the conflict:  If the court uphold the current rule and does not allow the passport to say "Jerusalem, Israel" it will essentially be saying that the President's signing statement overrides the act of Congress even though the act specifically contradicts the signing statement.  If Congress strikes down the neutrality provision and requires the passport to say "Jerusalem, Israel" it will be because it holds that the President may not ignore an act of Congress even in foreign affairs.  If you're a progressive who supports neutrality on Jerusalem, be careful what you wish for and take a look at who your allies are.  If you're like me and would like to see Congress reassert itself in foreign and military affairs then the neutrality provision is collateral damage, but well worth it.