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Sunday, May 27, 2012

Unintended Consequences (Part Two)

(Note: This is the second segment in a two part series. The first segment noted how sometimes our best intentions merely produce unintended consequences. A national law in the 1850s regarding slavery and another in the 1960s concerning immigration did not play out as their proponents had wished. Do current events contain the seeds of future unintended consequences?...)

While ending the immigration-limiting European (i.e. - white) quota system, the Immigration Act of 1965, in reality, had the opposite, unintended effect, opening the floodgates of immigration to other countries, many from the so called “third world” arena which embodied people of color. Today, 1 in 5 immigrants is Mexican, fulfilling a critical need to perform a whole host of new occupations in the proliferating service industries, while 1 in 4 immigrants is Asian. This places today’s era at the apex in terms of immigrants as a percentage of the total US population. The law is consequently understood to be one of the high water marks of late 20th-century American liberalism, although perhaps not what the Great Society liberals had quite intended.

Latin Americans, or Latinos as they are sometimes called, are the fastest growing ethnic group in the US today. Some look to be white, others black. And they are also all shades of color in between. Defying simple generalization, they are mainly identified as, first, Spanish-speaking and, second, Roman Catholic. Today, Latinos make up about 13% of the US population. It is estimated to be fully 50% by the year 2050. Would Congress still have passed the law had it been aware of the consequences?

In the second decade of the 21st century, it is apparent that the intent of the governing class may be far removed from the reality on the ground in at least a couple of instances.

In 2010 the US Supreme Court ruled that corporate funding of independent political broadcasts in candidate elections cannot be limited. The Court reasoned that to limit that spending would violate the 1st amendment of corporations, which it viewed the same way as people under the law. The ruling was a jolt to those who have been battling to curtail the corrupting influence of money in the political system.

Some say the high court’s decision has created an unwelcome new path for wealthy interests to exert corruptive influence on the democratic election process. But as the 2012 presidential election cycle unfolds, the grassroots political small dollar contributions to the candidacy of the populist President Barack Obama continue to pour in. The Obama re-election campaign seems to be having little difficulty in keeping up with the one percenters who would bankroll its defeat. Is this a case of unintended consequences, for reasons which are not yet altogether clear?

Finally, the US Supreme Court will soon decide on the legality of the new 2010 national health care law (more commonly known as Obamacare), whose passage had escaped every American leader tackling the issue dating back more than 100 years. The plain fact is that a significant number of what estimates project to be the 30 million Americans who will be able to obtain health insurance coverage for the first time under the new law are ordinary citizens of color.

Already, seismic tremors can be felt from a potentially adverse ruling from the conservative US Supreme Court, which some say is itching for an excuse to strike down the new healthcare law. An actual adverse decision, however, has the potential to expand the tremors to the magnitude of a political earthquake. Would it be one with unintended consequences?

-Michael D’Angelo

Sunday, May 20, 2012

Unintended Consequences (Part One)

(Note: This is the first segment in a two part series.)

Facebook’s initial public offering this week may serve as a useful reminder that sometimes our best intentions are disregarded. The devil fools with the best laid plans. Hell is paved both with sorrow and good intentions. But why do these old adages attribute responsibility entirely to the dark side? Might the rich getting richer be a simple matter of unintended consequences? Here are some thoughts to ponder:

Recently, a spectacularly wealthy American capitalist named Edward Conard has written a book with the catchphrase title of Unintended Consequences. The book makes a case for income inequality, bringing to light a litany of benefits bestowed upon public society by the venerable “one percent” class. The message is obviously self-serving. But in so doing, might the book’s message serve instead to have an opposite effect? Might its message unite the other ninety-nine percent, in a way the author had not intended?

US History serves some interesting examples of unintended consequences. There was a time when the US Supreme Court actually decided that black people had no right to sue in federal court, because they were considered to be a class of property, not people. The rationale was that the Declaration of Independence and the Bill of Rights were not intended to apply to African Americans. Moreover, since blacks were not considered to be people, Congress did not have the power to exclude the institution of slavery from the US territories which were not yet states. The will of the people who lived in those territories, which may have been to the contrary, was disregarded.

The Supreme Court ruled that what needed protection was the slaveholder’s property rights, under the 5th amendment. To rule otherwise would violate the prohibition against the seizure of their property without just compensation. The human welfare of black people was said to be secondary.

Designed to solve the controversy over slavery once and for all in the years prior to the Civil War, the decision proved to be a major political miscalculation. In reality, the opinion represented a judicial defense of the most extreme slavery position. Instead of solving the crisis, the decision intensified sectional strife, undercut potential compromise solutions and weakened the moral authority of the judiciary. It was a case of unintended consequences.

Almost a hundred years later, the US Congress passed the last and most recent immigration law of substance in this country. The law ended the immigration-limiting European quota system of the 1920s. Some say it was designed to bring in more whites to the country.

When President Lyndon B. Johnson signed the Immigration Act of 1965 at the foot of the Statue of Liberty, he stressed the law's overall symbolic importance:

This bill that we will sign today is not a revolutionary bill. It does not affect the lives of millions. It will not reshape the structure of our daily lives, or really add importantly to either our wealth or our power. Yet it is still one of the most important acts of this Congress and of this administration (as it) corrects a cruel and enduring wrong in the conduct of the American nation.

The president from Texas was not being uncharacteristically modest, saying only what his advisors and “experts” had told him. But, the myriad potential consequences of the new law, little noted at the time and ignored by most historians for decades, were appreciably misjudged by the president's experts.

(Next week's second segment charts the opposite, unintended effect of the law, some interesting immigration statistics and future projections, and projects a couple of present instances where the intent of the governing class may be far removed from the reality on the ground.)

-Michael D'Angelo

Sunday, May 13, 2012

Obamacare and Supreme Court Review (Part Three)

(Note:  This is the third and concluding segment in a three part series.  The first segment traced the confrontation between the executive and judicial branches to the powerful forces of conservatism to maintain and preserve the status quo.  The second segment featured examples of the confrontation in action from the archives of US History...)

In a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate.  It was the first and only presidential election decided by the Supreme Court in US history.

The outcome of the election between Vice President, Al Gore (Democrat), and Texas Governor, George W. Bush (Republican), turned on a razor thin victory for Mr. Bush in the state of Florida, where his brother, Jeb, was Florida’s governor.  But the Florida Supreme Court ruled that state law required a statewide manual recount of all ballots in which a machine failed to register a vote for president.

A federal lawsuit ensued.  The five most conservative justices on the US Supreme Court issued a ruling that no more recounting could take place, explaining that the review of these ballots threatened “irreparable harm to (Mr. Bush), and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”  The dissent responded that “counting every legally cast vote cannot constitute irreparable harm.”

The conservative majority noted that the Florida Supreme Court’s failure to articulate a more specific standard for determining a legitimate vote violated the constitution.  Under a different set of circumstances it might have been possible to send the case back to the Florida Supreme Court to create a more explicit standard.  But the majority announced its belief that the state of Florida intended to resolve all disputes by the federal deadline ensuring the state's electoral college votes would not be challenged in Congress.  Since the decision was handed down on the evening of the deadline, there was no time left to count votes.

The practical effect of this decision was to declare Mr. Bush the president-elect.  Mr. Gore promptly conceded.

The dissent argued that the US Supreme Court had no business interfering in the presidential election dispute, stressing that these issues were more properly addressed by the state of Florida and then Congress, if necessary.  The dissent also emphasized that the majority's opinion was inconsistent with the previously expressed views of those justices on limited government and that the actual loser of this presidential election was “the Nation's confidence in the judge as an impartial guardian of the rule of law.”  Allegations of partisan decision were inescapable.

·            The present 2012 election year political environment, with a progressive Democratic president facing conservatism again seemingly retired into the judiciary, bares similarities with prior instances.  And so Mr. Obama’s recent sentiments expressed on the pending constitutional challenge should come as some surprise: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

But Mr. Obama’s confidence may be little more than a product of wishful thinking.  The independence of the US Supreme Court in its decision-making methodologies is beyond question and as such strictly another matter.  Its own political labels and rigid ideologies may be discarded, even the opposition’s ideologies borrowed and reformulated for convenience.  History demonstrates that a conservative US Supreme Court is more than ready, willing and able to become judicially active, big government style.  It may even don the insipid label of the “L” word, “liberal”.  All judicial options are on the table, when it comes to crafting a result which protects the status quo in particular deference to its powerful conservative minority constituency.

President Obama has said: “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint.  That a group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.”  The President is a popular chief executive who by his words has fired an interesting political warning shot across the bow of a conservative Supreme Court.  If the idea of an adverse ruling can be felt as a tremor, then the ramifications of an actual decision striking down the new healthcare law has the potential of a political earthquake.

-Michael D'Angelo

Sunday, May 6, 2012

Obamacare and Supreme Court Review (Part Two)

(Note: This is the second segment in a three part series. The first segment traced the confrontation between the executive and judicial branches of the US federal government to the powerful forces of conservatism to maintain and preserve the status quo.)

But as provocative as it sounds, this confrontation between the three branches of government is hardly new in the annals of US History...

As early as 1801, following the administrations of Washington and Adams, President Thomas Jefferson lamented the increasing shadow of federal power. The earliest champion of limited government astutely reasoned that its concentration within the defeated opposition party had merely been “retired” to the judiciary as a stronghold. “There the remains of Federalism are to be preserved and fed from the treasury and from that battery all the works of Republicanism are to be beaten down and erased.” His experience had merely demonstrated the prostration of the judiciary before partisan purposes.

In Jefferson’s case, the force of judicial opposition was blunted and rendered of little consequence as time went on, however, and his influence and revolution spread. His elected presidential successors, James Madison in 1808 followed by James Monroe in 1816, culminated nearly a quarter century of unprecedented Jeffersonian rule and the virtual disintegration of the opposition party.

Following in Jefferson’s footsteps, President Andrew Jackson protested an 1832 US Supreme Court decision affirming the expanding powers of the federal government. The decision provided that the federal government and not the states had authority in American Indian affairs. In response to the ruling, the colorful, quotable and enormously popular “president of the common man” was said to have remarked: “John Marshall (Chief Justice) has made his decision; now let him enforce it!”

In an otherwise progressive presidential administration, it was a rather isolated instance of conservatism with respect to American Indian affairs meeting a judicially active US Supreme Court head on.

The turn of the 20th century produced a similar chemistry under the presidency of Theodore Roosevelt, a rare progressive Republican. In 1905 the US Supreme Court struck down a New York state law regulating sanitary conditions and prohibiting individuals from working in bakeries for more than 10 hours per day or 60 hours per week. The Court ruled that the law limiting bakers’ working hours did not constitute a legitimate exercise of state police powers. Rather, the proper authority was the federal government, which in this instance and to that point had not acted, resulting in a void of leadership.

It was another case of a conservative US Supreme Court tamping down progressive legislation on behalf of labor and human welfare.

The dissenting (minority) opinion, only three paragraphs long, was noteworthy. It accused the conservative majority of judicial activism, pointedly claiming that the case was “decided upon an economic theory which a large part of the country does not entertain.” The minority added that “Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory.”

Over the years the case has been one of the most condemned in US history and has been used to symbolize judicial dereliction and abuse. In other words, it is a form of shorthand for extreme right wing constitutional theory. In reality, the Supreme Court was merely protecting the conservative status quo.

By the late 1930s President Franklin D. Roosevelt introduced a reform plan to re-organize the Supreme Court on its perception as a conservative hold out in an increasingly progressive climate. Termed a “Court-packing” procedure, F.D.R.’s plan sought to increase the number of sitting Justices. The idea was to increase his ability to enact New Deal programs aimed at expanding the federal government's power to alleviate the poverty-stricken conditions of the ongoing Great Depression.

The number of Justices had originally been set at 6 by Congress. In 1869 following subsequent changes in policy, the number was placed at 9. Since appointments were for life, this limited a president's power over the Supreme Court to the ability to place new nominees into vacancies on the bench, whenever they should occur. The proposed legislation would have allowed the president to select as many as 6 new Justices, each for every member over 70.5 years of age, on the theory that this would allow for the diminished capabilities of older justices. Those diminished capabilities were decidedly conservative.

Contrary to what was originally expected from the legislation, however, its failure to pass Congress coincided with the evolution of a Supreme Court newly supportive of the New Deal. While judging whether this was merely a coincidence may be a matter of speculation, its introduction damaged and cost F.D.R. some of his political support.

By the time of the 2000 presidential election the Supreme Court remained on a conservative bent as a lagging phenomenon from the successive administrations of Presidents Reagan and Bush/”41”, dating from the 12 year period from 1980-1992. Each administration was firmly and consistently outspoken against judicial activism.

Yet, in a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate. It was the first and only presidential election decided by the Supreme Court in US history.

(Next week's third and final segment analyzes the legal twists and turns in the US Supreme Court case of Bush vs. Gore and concludes in the present with the Court's consideration of the constitutionality of Obamacare.)

-Michael D'Angelo