Adjudicating the Affordable Care Act

The Spring 2012 class of John Glenn Fellows arrived in time to enjoy festivities occurring at the Supreme Court, just around the corner from their residence at 215 Constitution Avenue, N.E. Along with the rest of us this week they have been treated to three days of oral argument in the case that challenges the constitutionality of the "individual mandate" at the heart of the Affordable Care Act. Officially, the case is known as Department of Health and Human Services, et al v. Florida, et al. Day-by-day transcripts of the proceedings are available here. One of the more thoughtful commentaries I have read is Glenn Thrush's piece in today's Politico. Like virtually everyone else in our nation's capital, the Washington Buckeye feels compelled to comment, but he will confine his remarks to jurisprudential considerations.

For me the key question is whether the Court, whose authority is based on the ideal of impartiality and stare decisis, is obliged to defer to Congress when a majority of the judges deem the substance of the legislation to be unwise. As luck would have it, developing the case for judicial self-restraint requires an excursion back to the 1930s and a wheat field outside Dayton, Ohio.

The administration of President Franklin D. Roosevelt and a Democratic majority in Congress wished to control the production of various products in order to drive up prices, which had been seriously depressed, which is why it's called the Depression. The Agricultural Adjustment Act of 1938, to get straight to the point, set limits on the amount of wheat that farmers could grow. A resourceful Ohio farmer named Roscoe Filburn (pictured above, in his granary, presumably) baked his own bread and argued that consumption of his homegrown wheat had strictly intrastate implications, which meant that the provisions of the Act did not apply to him. The Supreme Court did not agree.

In its argument, a unanimous Court in 1942 cited Chief Justice John Marshall's holding in Gibbons v. Ogden, a landmark case that very early on (1824) set almost no limits on Congressional power under the Commerce Clause. The Court held that farmer Filburn was subject to regulations promulgated by Roosevelt's Secretary of Agriculture (Wickard), and that he was not entitled to grow wheat in excess of his allotment. In essence, the Court upheld an "individual mandate" that farmer Filburn buy his bread at the general store, logic that would seem to me easily applicable to the private health insurance market.

Of course, you could argue it the other way. That would mean citing a line of precedent beginning with U.S. v. E.C. Knight (1895) and running through the many cases of the 1930s used to strike down the economic recovery measures of the New Deal. In those days, it was the liberals who complained about an activist judiciary and who called for deference to the elected branches of government. Later, when the Warren Court was riding high, it was conservatives who argued that judges should refuse to rule on questions that are essentially political, as opposed to legal. Times change.

You and I (along with Respondents in the present case, and together with Justices Roberts, Scalia, Thomas, Alito, and perhaps Kennedy) might agree that the "individual mandate" to purchase health insurance is not the most efficient means of achieving the Affordable Care Act's ends. We might agree, too, that health care ultimately is, like public safety and education, a concern reserved (by the Tenth Amendment) to the states. But those of us with such unorthodox views should above all consider that the rule of precedent is the only thing (aside from impeachment) preventing the judiciary from assuming the powers of a super-legislature whenever it feels like it. Because of its obsession with precedent, judicial self-restraint is an inherently conservative doctrine, which is why it is somewhat unsettling to observe that the self-consciously conservative members of today's Court seem reluctant in the extreme to embrace the idea that the essence of the judicial duty is to "say what the law is" (to quote Chief Justice Marshall) and not to second-guess the elected representatives of the American people.

Stay tuned. And expect a ruling to be handed down in plenty of time for this fall's presidential election campaign, which will be governed by rules laid down by this Court in its controversial Citizens United decision of 2010.

April 1, 2012 update: Today's Washington Post has a couple of columns on healthcare that are worth reading. In "Eat Your Broccoli, Justice Scalia," business writer Steven Pearlstein sketches a scenario in which the Court, led by Chief Justice John Roberts and Associate Justice Anthony Kennedy, would resist the temptation to blow up the Affordable Care Act entirely. On the op-ed page, in "The Court Can't Stop the Health-care Revolution," David Ignatius, citing the leadership role of the Cleveland Clinic, sees some larger trends unfolding that may do more than the Court to determine how healthcare policy unfolds in the U.S.

Spring 2012 Glenn Fellows Attend Brookings Event

On their very first day in Washington, the Spring 2012 class of John Glenn Fellows attended a Brookings Institution event featuring Marine General John Allen, Commander of the International Security Assistance Force in Afghanistan. Read the transcript here.

The Federal City

After the Constitution of the United States went into effect in 1789, the government proceeded to make a number of momentous decisions, some of which had to do with the finances of the precarious new republic. Congress had been granted the power to levy taxes, to regular interstate commerce, and to print money—all of which had been denied the Congress under the Articles of Confederation. But the challenges were many, including the issue of who would be responsible for repaying debts incurred during the American Revolution. Some of the states had made an effort to retire their loans, but others had not. Our creditors included both individual Americans and foreigners, and it wasn’t clear whether the states respectively or the national government under the new Constitution should bear the burden of repayment.

The first Secretary of the Treasury, Alexander Hamilton, who harbored a vision of a “strong, well-mounted government” and a bustling commercial republic, viewed the national debt as a national blessing—up to a point, at least. Hamilton proposed that all of the nation’s public debt be assumed by the new national government and funded at par, a policy that enriched the many speculators who had bought up depreciated war bonds during the hard economic times of the 1780s. In addition to making some people rich (and in effect buying their loyalty to the new republic), Hamilton also proposed the creation of a national bank and investment in infrastructure, that is, “internal improvements” such as roads and canals. To win Congressional approval of this highly controversial plan, Hamilton had to cut a deal with those harboring a more modest, agrarian vision of America’s future, particularly the two Virginians, Thomas Jefferson and James Madison. A deal was cut over dinner at a New York townhouse: Hamilton’s financial measures would be approved by the Congress, but in return states that had paid off their debts would be reimbursed by the federal government ($1.5 million in the case of Virginia), and the national capital would be moved away from the northeast, where the commercial classes were prominent, to a location more convenient for and receptive to the rural and slave-holding south.

The issue of the national capital was addressed by Congress with the Residence Act of 1790, which authorized President George Washington to select a location somewhere along the Potomac. Unsurprisingly, Washington favored a spot that was below the fall line and not too far from Mount Vernon; to implement the plan, Washington recruited aides, including Hamilton, whom he had learned to trust during the Revolution.

Enter the shadowy figure of Pierre Charles L’Enfant, the man whose name is synonymous with the design of the city of Washington, DC. L’Enfant had come to the New World to help General Washington win the Revolutionary War. He made himself useful at Valley Forge, and he did some networking among the officer class through the terrible winter of 1777-78. Afterwards, he employed his talents—many of them artistic—to further the creation of the Society of the Cincinnati, which some people regarded as an American version of the English House of Lords. It was L’Enfant who designed Federal Hall in New York, the building where Washington was sworn in as president of the United States on April 30, 1789, and he earned something of a reputation for what we would call “event planning.” After passage of the Residence Act, L’Enfant offered his services as designer of the city that would arise in the new Federal District straddling the Potomac.

Though L’Enfant was enamored of life in the New World—he wanted to be called “Peter,” for example—it was natural for him to look to his home town, Paris, for inspiration, and that suggested the standard baroque playbook of geometric plans with radiating boulevards, public squares with their neoclassical palazzos, obelisks, and equestrian statues, and long axial vistas—elements suitable for military parades and revues and for exploiting the local topography, the whole composition being an implicit rejection of the humble Jeffersonian gridiron that was to become ubiquitous throughout the rest of urban America.

The result is that among cities in the United States, Washington is unique, and has always been so. L’Enfant thought that the several states would take responsibility for developing “their” grand avenues and piazzas, and that the city as a whole would issue from these nodes like a puppy growing into its paws. That happened in the end, but it took the better part of a century. During that time Washington was ridiculed as an “embryo capital,” featuring “squares in morasses,” and “obelisks in trees,” a city of “magnificent distances,” with tree stumps in the boulevards and a swamp dividing the President’s House from Jenkins’ Hill (i.e., Capitol Hill). For many decades, L’Enfant’s plan seemed a hopelessly grandiose exercise in futility. Benjamin Latrobe called it a “gigantic abortion.”

L’Enfant himself, unfortunately, was a prideful and somewhat prickly character who rubbed DC’s commissioners the wrong way, alienated the most powerful local landowner, and finally wore out his welcome with President Washington. L’Enfant was dismissed in February of 1792, and an imperfect version (see image above) of L’Enfant’s plan executed by the surveyor Andrew Ellicott. Rather quickly, L’Enfant drifted into obscurity along with, after 1800, most of the leaders of the Federalist party that had been led by his patrons.

Washington, DC, began to look like a proper national capital only with the growth of government that accompanied the Civil War, with soldiers, bureaucrats, construction crews, office-seekers, and prostitutes descending upon the capital city. But the growth that ensued was higgledy-piggledy, unguided by the L’Enfant plan, which was neglected along with memory of the man himself. The elderly L’Enfant lived as the “permanent houseguest” of kindly friends at Warburton Manor, where he spent his time petitioning Congress for proper recognition of his service to his adopted country. He died and was buried in an inconspicuous grave in 1825.

Recovery of L’Enfant’s original vision was spurred by the professionalization of landscape architecture and the popularity of Beaux-Arts classicism during the Gilded Age. The watershed event was the Chicago Fair of 1893—formally, the World’s Columbian Exposition celebrating the “discovery” of America. Through the Senate Park Commission, also called the McMillan Commission, Progressive politicians called for recommitment to the basic principles of L’Enfant’s plan; their wooden models are on permanent display at the National Building Museum. As for the long-neglected Major L’Enfant, his mortal remains were exhumed in 1909; his grave now occupies a place of honor near the front of the Lee-Custis Mansion in Arlington National Cemetery.

L’Enfant’s original plan for the city is easily discerned in the modern city. The Victorian train station on the National Mall was eventually removed, part of a deal struck to build Union Station, Washington’s most eloquent tribute to the Chicago Fair. Tiber Creek, which L’Enfant turned into a canal, was covered over, finally giving way to Constitution Avenue. Until fairly recently, Washington still had many of the features of a somewhat sleepy Southern city, racial segregation being only the most lamentable of these. As late as the early 1960s, it was still possible for President Kennedy to joke about the city’s unique combination of “southern efficiency” and “northern charm.” Before long, the Capital Beltway and the Metro had transformed the black-and-white city that had dazzled Senator Jefferson Smith when he came to Washington in the person of Jimmy Stewart. Architectural controls and building height limitations have preserved much of the spirit of the L’Enfant plan.

And now, with publication of Scott W. Berg’s Grand Avenues: The Story of Pierre Charles L’Enfant, the French Visionary Who Designed Washington, D.C. (New York: Vintage, 2008), we have a biography worthy of the city that took shape so gradually over a long span of time. Berg shows us that the distinctiveness of Washington, D.C.—it’s beauty, most would be willing to say—is due entirely to its designer’s recognition that this city, unlike all others, “would not happen; it would be made.”

James Q. Wilson Dies at 80

I recollect reading the work of James Quinn Wilson back in the 1960s, when many political scientists were enamored of theoretical or methodological fancies far removed from the rough and tumble of everyday life. In those days my intellectual heroes--Daniel Patrick Moynihan, Jeanne Kirkpatrick, and Jane Jacobs, among others--were, by contrast, scholars committed to solving practical problems. That's what I admired about James Q. Wilson. When Wilson died this week at the age of 80, I was taken aback to realize that he would have been only in his early 30s when he published City Politics (co-authored with Edward C. Banfield, 1963) and The Amateur Democrat (1967). Later, he was to earn fame as one of the leading students of police administration, to which he contributed the influential "broken window" theory that transformed the culture many a big-city police department. Wilson's Wikipedia entry lists seventeen books in all. To judge from the obituaries, he was a prince of a fellow as well. Here is the Huffington Post obit. And here is George Will's tribute in today's Washington Post.

Winter 2012 Glenn Fellows and the Glenns

So Damn Much Money: A Book Review (Reprise)

The sordid story of Congressional sausage making is well told in Robert G. Kaiser’s So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government (New York: Alfred A. Knopf, 2009). Kaiser makes a persuasive case that American universities—not Wall Street or the Teamsters or the AARP—are responsible for one of Washington’s nastiest and most expensive habits: earmarking.

As technical instruments for the appropriation of public monies, earmarks haven’t been around nearly as long as one might suppose. The protagonist in Kaiser’s history is a lobbyist named Gerald Cassidy, one of whose clients, Tufts University, wanted to build a nutrition center on its campus in Medford, Massachusetts—which, as luck would have it, was in the district of Tip O’Neill, who was soon to be elected Speaker of the House. O’Neill enlisted the support of Rep. Jamie Whitten, long-time power broker on the House Agriculture Committee. And voilà. In fiscal year 1978, as Kaiser tells the story, “Congress appropriated $20 million to build the nutrition center, and an additional $7 million to fund its initial operations. Though attached to Tufts, it would be formally part of the U.S. Department of Agriculture, which would pay its operating expenses for years to come.”[i]

As soon as they saw what Cassidy and Tufts president Jean Mayer had done, other universities were quick to get into the game. Kaiser’s story is fascinating because it involves so many academics—and priests, in the case of Georgetown and other Roman Catholic universities—along with a few certified scoundrels, including Jack Abramoff, and some of the most prominent members of Congress on both sides of the aisle. The bucks, let it be said, are decidedly big; the last photo in the book’s gallery is an aerial shot of Gerry Cassidy’s $8 million estate on the shores of the Chesapeake Bay.

One of the many virtues of this book is that Kaiser recognizes that there is a case to made on behalf of earmarks. To begin with, the distinction between “pork” and the legislator’s responsibility to “bring home the bacon” is largely one of perspective; it’s legitimate bacon when it’s on my plate, it’s pork when it’s on yours.

That said, I fear that Kaiser is right to suggest that while legislators sometimes can be corrupted by crooked lobbyists, it is as often the case that the vicious circle begins with Members of Congress who feel they must be increasingly aggressive in their pursuit of campaign contributions. So Damn Much Money is an informative account of Congressional sausage making, and one that suggests that Congress remains, in the words of Thomas Mann and Norman Ornstein, “the broken branch.” It’s not a pretty picture.

Here is a link to the Table of Contents of Kaiser's book.


[i] Robert G. Kaiser, So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government (New York: Alfred A. Knopf, 2009), p. 71

A Diplomat's Progress--Book Review (Reprise)

This week the Winter 2012 class of Glenn Fellows is reading Samuel Huntington's famous Foreign Affairs article on "The Clash of Civilizations." As an introduction to the not-always-glamorous world of professional diplomacy, I have also assigned a book called A Diplomat's Progress, written by Henry Precht, a retired foreign service officer. Mr. Precht was born in Savannah, Georgia, and educated at Emory University. He joined the foreign service in 1961 and served in U.S. embassies in Italy, Mauritius, Iran, and Egypt. He was the Department of State’s Desk Officer for Iran during the revolution and hostage crisis when the Shah was overthrown, and he was deputy ambassador in Cairo when Anwar Sadat was assassinated. His nomination by President Jimmy Carter to the post of U.S. ambassador to Mauritania was blocked by Senator Jesse Helms, who blamed him for "losing Iran."

After leaving the foreign service, Mr. Precht served as president of the World Affairs Council in Cleveland, Ohio, where he also taught at Case Western Reserve University. A few years ago, he published A Diplomat’s Progress, a work of fiction consisting of a series of vignettes about a State Department official named Harry Prentice. It is an engaging work that reveals, as one reviewer has put it, the “grittier side of embassy life with a wry sense of humor and a bit of an edge.” To the extent that the work is autobiographical, A Diplomat’s Progress is rather remarkable.

For one thing, the “grittier” aspects of diplomacy are portrayed warts and all. In one of the vignettes, the young Harry Prentice and his wife attend a dinner party at the home of the foreign minister of Mauritius, during which the lecherous host assaults the drunken daughter of the Japanese ambassador. In a vignette set in Egypt, the protagonist must tend to a dead body and a suitcase full of drug money. In “Caviar and Kurds,” set in Iran, Prentice unwittingly leads the Shah’s secret police to an underground freedom fighter named Hassan, whom Prentice finds hanging from a lamppost the next day. In this account of embassy life, it seems that no good deed goes unpunished.

Most remarkable as an autobiography—and surely it must be regarded as partly that, in spite of the veneer of fiction—is the book’s unflattering portrait of its protagonist. Throughout A Diplomat’s Progress, Harry Prentice’s diplomatic efforts are undone by his unusual combination of naivete and cynicism. Typically, the reader is given a glimpse of a career diplomat preoccupied, not with the national interest, as one might suppose, but rather, with his own career advancement. At one point, for instance, Prentice seems to have been the unwitting accomplice of a Palestinian terrorist. What does he do about it? He gets up in the middle of the night to compose a somewhat Bardachian “balance sheet of possible courses of action.” There appear to be two:

First, the natural inclination of every Foreign Service Officer: Do nothing. Wait on events and react as necessary and as seems prudent at the time. . . . Alternatively, I could report my suspicions to the police. Playing it straight and admitting wrong might be partially redeeming. The key word was “partially.” The embassy surely would be informed and handle my future as if it had no value. The same with the Israeli authorities. I had to face it: Only I really cared about my future, not any American or Israeli career-building bureaucrat.

During his posting to Cairo, Prentice is asked to interview a Sheikh who might have been in a position to influence the extremists holding a number of American hostages in Beirut. Prentice’s efforts fail. “But never mind,” seems to sum up his reaction. “I could only hope that someone—the ambassador or an unknown friend in the department—would make an excellent report of my performance for my file.” The adventure, he concludes, “just might be a turning point—upward—in my career.” On the basis of the evidence provided by the author, the judgment handed down by Prentice’s first wife seems just: He has “a pretty good soul, even though sometime it seems quite lost in the bureaucratic maze.”