Endangered Species Act also at risk along with Obamacare tomorrow

Obamacare undergoes Supreme Court scrutiny tomorrow, and we'll hear in a few weeks/months as to what the Court does.  The challenge is whether Congressional ability to regulate interstate commerce allows the government to require people to buy health insurance, paying a penalty if they refuse to do so.

Wading through the mumbo jumbo, I think we ultimately have two choices.  One is that except in the most strained and patchworked circumstances, Constitution places almost no restraint on the ability of the federal government to act like a state government in terms of economic regulation.  Politics, not courts, restrain the scope of federal government.  This is the choice that courts have made since the 1930s.

The other choice is that except in strained and patchworked ways, the Constitution doesn't allow the federal government to operate like a modern integrated nation-state in terms of economic regulation.  The government could figure out weird work-arounds involving tax incentives in some cases, but otherwise we'll just have to hope that government is the problem and not the solution, because we're not going to let it operate as a solution.

These are the ultimate choices, and a decision to partially overturn Obamacare doesn't send us all the way to the second choice.  It does start us down the road though, with consequences to follow.

Next in line could be the Endangered Species Act, which has been challenged often and unsuccessfully for involving non-economic, intrastate activity.  It's the nature of species dwindling enough to be eligible for listing as endangered that also makes them less important economically, and they rarely locate their last habitats on the border between states instead of inside a single state.  Lower courts haven't worried about this though, based on Supreme Court precedent since the 1930s.

The Supreme Court never reviewed this particular challenge though, and Chief Justice Roberts, back when he was a wee appellate judge, signaled his own concern with the ESA.  If the Supreme Court changes how we understand the Commerce Clause, things can change for environmental regulation.

A lot is dependent on what the Court decides over Obamacare, and on who gets to make the replacement appointments between now and January 2017.

An alternative approach to the contraception coverage issue

I don't have an ethical problem with Romneycare's support for mandating birth control coverage by religiously-run institutions doing secular activities like running hospitals, with similar provisions in many states, or with similar provisions in Obamacare.

Another way to handle this issue though is to require the same total level of financial commitment from religious employers and then let them choose something additional to cover, to make up for their decision not to cover contraception.  Their hospital employees can get breaks on plastic surgery, while other hospitals' employees get contraceptive coverage.  No financial reward accrues to a religiously-based resistance to coverage, and secular employees can keep the coverage differential in mind when deciding which jobs to apply to.

This could be done even more broadly:  rather than every insurance provider being required to cover the same standardized basket of services, just figure out how much that basket would cost for your average provider, and tell other providers that they can choose a different basket so long as that different basket, if paid for by the average provider, cost at least as much as the standardized basket.  If they can then figure out a way to do things differently and cheaper, then more power to them.

I doubt these solutions are allowable currently, but maybe that could change someday.  I generally prefer determining the fair cost approach for someone who wants to deviate from a standard, like requiring lifelong coma/quadraplegia insurance for motorcycle riders who don't want to wear helmets, rather than simply telling them what they can or can't do.


UPDATE:  Apparently I should clarify.  I was comparing replacement of contraceptive coverage with something trivial like plastic surgery not in order to indicate that contraceptive coverage is trivial, but that employers IMO are unnecessarily and significantly reducing the value they provide to employees if they really want to follow this unwise path.

UPDATE 2:  Just like I don't have a problem with the original proposal, I don't have a problem with the new one.  The cost issue is less than entirely clear to me - if it's really the case that it saves insurers money, then that's fine, but if the coverage costs money on net, then there's the question of who pays for it.  And the Catholic Bishops want to exempt not just the religious charities but any business run by Catholics from the same obligations as other business, which is a real race to the bottom if the exemption saves them money.  And there's self-insured Catholic charities, but they're getting ever further afield from religious service and being more like any other business entity in that case.  I still think the best approach would be to develop a basic cost basket, and a clear, mandatory disclosure of when the insurer deviates to add and subtract from the standardized basket.

What the heck, UPDATE 3:  my classmate Laura MacCleery battles it out on Fox News.

Democrats are blowing it, and they need to learn from Bush

I promise to let go of this soon, but I can't handle the Democratic foolishness.

While the Republicans had terrible policies with horrible results that earned them their current, out-of-power position, they were good at getting those policies enacted. So how did the Bush Administration react when the entire national electorate kicked Republican butts out? They offered one sacrifice - Rumsfeld - and then doubled down on their policies with the surge in 2007. And while the surge was a worse policy choice than initiating a drawdown as Bush agreed to in 2008, it was better than the status quo and somewhat improved Republican electoral outcomes in 2008.

Now we have one Democratic state rejecting one Democratic candidate who ran a lousy campaign, where the only clear fact is that the electorate supports the in-state version of health care that's planned nationally, and the Ds can't decide what to do.

The policy choices seem to me to be either pass the Senate bill unchanged combined with a possibility of improvements in separate legislation, or alternatively to work for a slight possibility of a few piecemeal reforms instead. How anyone can hesitate in light of those choices is beyond me.

The politics seem clear too - the Democrats need this achievement to have something to run on in November.

I'm not the political expert - maybe I'm missing something. But the Obama Administration, the Democratic party leadership, and any Democratic congressional member who doesn't push for it, all seem to me to be screwing it up.

There's some quote about snatching defeat from the jaws of victory that Lincoln might have said (I couldn't confirm). I think the Democrats are half way to doing it now. I still hope and think they can fix it.

So much for the left-wing strategy of waiting for better bills on climate and health

(IMPORTANT UPDATE: the obvious strategy some bloggers are announcing - call up your Representative, if the Rep is Democratic, and tell him or her to pass the Senate health care bill as is.)


With Democrats now having lost their 60th seat in the Senate, we can assess how likely it is that left-wing hopes will come true in 2010 for better bills on climate change and health care. The political left isn't strong enough to be solely responsible for the slow work on legislation, but they played their role.

The right wing view is that the electoral defeats for Democrats are a repudiation of the Democratic platform. The real world view is that the Democratic platform hasn't been tried, and the electorate is repudiating inaction.

Democrats can complete the repeat of 1994 by not passing health care, or they make use of their more limited options they have now, like the House passing the Senate bill without alteration, and moving forward. Similarly, there are a few Republican Senators who don't want to be on the wrong side of history regarding climate change, so there's still a chance there, but on their terms.

Anyone on the left who thinks the 2010 elections will allow for better legislation in 2011 needs to have their head examined. The only semi-logical reason for opposing existing climate and health care legislation is to believe they make things worse than the status quo. It's a completely wrong belief, but that's how far you'd have to go to make any sense out of the opposition from the left.

Finally, for any half-way significant bloggers who wanted the Democrat to win the seat and who felt like getting in recriminations and negative public perceptions in the hours and days before the election finished: you're part of the problem. You should fight for victory when it's possible rather than exude a sense of defeat. Now, on the other hand, is the time for recriminations.

UPDATE: what I should've mentioned is that the moderate-to-conservative Dems are the most at fault, and they're the ones who will lose their seats if the public judges the Democrats to be failures. From their incorrect perspective, there's a risk if Congress passes something too strong, but I think there's even more of a risk if Congress does nothing. They're being idiots.