Sustaining Obamacare

Except for one minor provision, the Supreme Court on June 28^th upheld President Obama’s signature Affordable Care Act (ACA), as Linda Greenhouse had predicted, with Chief Justice Roberts writing the opinion of the court and providing the swing 5-4 vote.  But Roberts’ opinion is so convoluted that both CNN and Fox initially reported that ACA had been ruled unconstitutional.

Most of the case concerned the constitutionality of the Act’s individual mandate that will require most people lacking health care insurance to pay a penalty added to their federal taxes and collected by the Internal Revenue Service.  Roberts’ opinion, part of which represents the opinion of the Court and part his own (minority) opinion, starts off by denying that the mandate is justified by the Commerce Clause of the Constitution since not buying insurance is not “commerce”—and shouldn’t be because then Congress could require everyone to buy broccoli to improve their health.  The opinion then goes on to deny that the individual mandate is justified by the Constitution’s Necessary and Proper Clause since even if it’s a “necessary” part of the ACA, it is not a “proper” one.

Finally, after 30 tedious pages during which he apparently exceeded the attention span of CNN and Fox, Roberts gets around to Congress’ power under the Constitution to “lay and collect Taxes.”  On page 44, he concludes (for the Court) that what the ACA describes as a “penalty” is really a tax and within Congress’ power to enact and is therefore constitutional.  But previously, on page 15, while again writing for the Court, Roberts dismisses the federal Anti-Injunction Act, which forbids lawsuits like this one “for the purpose of restraining the assessment or collection of any tax,” on the grounds that the penalty is really a “penalty” and not a “tax.”

Justice Ginsburg, whose opinion follows that of the Chief Justice, argues that all parts of the ACA are constitutional as written, particularly under the Commerce Clause.

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.  In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors.  Beyond question, Congress could have adopted a similar scheme for health care.  Congress chose, instead, to preserve a central role for private insurers and state governments.  According to the Chief Justice, the Commerce Clause does not permit that preservation.  This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Roberts’ “crabbed reading of the Commerce Clause,” writes Ginsburg, “should not have staying power.”  I believe there are good reasons why it won’t.  Roberts’ many pages describing what portions of the Constitution do not support the ACA’s individual mandate are actually irrelevant to the Court’s holding that the mandate is supported by the taxing power.  As such they’re considered (in legal lingo) “dicta” which, unlike the Court’s holdings, do not represent precedents for subsequent decisions.

Furthermore, the Commerce Clause is too important to the Constitution and US history to suffer a crabbed interpretation.  The federal government’s supremacy in interstate commerce was arguably the founders’ number one priority in establishing the Constitution to replace the Articles of Confederation and is arguably the number one reason why in early in the 20^th century the US became the economic powerhouse of the world.  Europeans have recently tried to create the economic equivalent of the US market with their Common Market.  The Common Market’s flaw, as we see today, is the lack of a single, strong government to regulate it.

The only other opinion in the ACA case except for a short solo dissent by Justice Thomas is a bizarre joint dissent signed by Justices Scalia, Kennedy, Thomas and Alito asserting that the ACA is entirely unconstitutional.  It’s as if the opinion of four of the Court’s five conservative choirboys was designed to be a majority per curiam opinion, an anonymously written opinion “by the court.”

While it would have been a scandalous departure from Supreme Court practice if a 5-4 opinion striking down the landmark ACA had been written per curiam, that may have been exactly what the four anticipated when their opinion was written.  In a follow-up column, Linda Greenhouse suggests that Roberts’ vote affirming ACA may have been a last-minute switch that left his four conservative colleagues in the minority.  Minority dissents are by definition not by the court, so without Roberts’ support what may have been intended as an anonymously written majority opinion became an anonymously written minority opinion.

In the end, the Supreme Court’s validation of the most significant piece of social legislation since Medicare and Medicaid ultimately depended on a halting, awkward and inconsistent opinion of the Chief Justice that eventually found its way to a place in the Constitution that sheltered the individual mandate and saved the Act.  Although the opinion did not persuade any of his fellow-conservatives, not even the supposed swing-voter Justice Kennedy, Roberts has received praise for a courageous vote.  I’m not persuaded that he deserves it.  After donning the mask of someone who respects legal precedent and tradition for his Senate confirmation hearings, he led a coalition of five of the nine justices that ravaged the judicial landscape and in its most notable case destroyed a century of campaign finance reform.  Its clownish behavior at several days of argument for and against the ACA changed public expectation that the Court would surely uphold the Act to one of expectation that it well might not.

And who knows?  Perhaps that’s where it was going, but Roberts changed his vote.  Perhaps he worried about his place in history.  Since Bush v. Gore, when the candidate with the majority of the people’s votes lost the Presidency by one vote on the Supreme Court, the public has soured on the Court that it once respected, and Roberts has done nothing to restore that respect.  Until June 28^th, maybe.  We’ll see.

Did Democrats Lose the 2102 Election in Wisconsin?

In the Wisconsin gubernatorial recall election in early June, Republican Governor Scott Walker easily won the right to continue in office.  Democrats cited his outsized funding advantage from Super PACS, but turnout was high on both sides, and many voters including those from union families apparently approved of Walker’s stripping the (mostly) teachers’ unions of collective bargaining rights or disapproved of the use of recall to decide the issue.

What lessons might we take?

One is that popular mass movements should not waste their energies on political campaigns, which in this case took the Occupy Wisconsin movement that inspired Occupy Wall Street many months later and subjected it to “corporate co-optation by the Democratic Party.”  The Democratic candidate was the same as in the regular election in 2010 who lost a second time to Walker by the same margin.

A second is that there is no way that Republicans backed by Super PACS are not going to out-spend Democrats by large margins.  If the Democrats are to win in November, it will be by addressing the concerns of undecided voters while persuading minorities and unregistered millennials that voting is worth their while.

Finding the means through executive action to further the purpose of the stalled DREAM Act in Congress by suspending deportation of illegal immigrants brought to this country as youths and making them eligible for work permits was a very popular move by Obama.  If now he could find the executive means to alleviate the harshly discriminatory terms of student loans by, say, lowering the cap on maximum loan payments or broadening the definition of loans to which the cap applies, he might persuade those who bear the burden of one trillion dollars of student debt to show up on election day while also stimulating the economy.

Addressing the concerns of undecided voters is more difficult.  I met one while campaigning recently who favored Obama in 2008 but was undecided about 2012.  A man in his forties, he’d had a job since he was 12 and made sure that he had one now with good insurance to provide for his wife and children and himself.  He was negative about unemployment insurance because, he said (speaking from his own experience), there are jobs out there for people who go after them.  He was also dead set against the Affordable Care Act (ACA), aka Obamacare, which he was sure he would end up paying for.

Virginia psychologist Jonathan Haidt, who maintains that liberals and conservatives don’t understand each other, singles out the Tea Partiers’ concern for justice, which Haidt calls karma—if you work hard, you should be rewarded; if you duff off or screw up, you should suffer the consequences.  The Tea Party movement sprang to life when the government bailed out the banks that created their own (and our) problems, and then, according to Rick Santelli on CNBC, started “promoting bad behavior” among mortgage holders: “How many of you people want to pay for your neighbors’ mortgage that has an extra bathroom and can’t pay their bills?”

As my undecided voter put it, if someone tells you that you can afford a mortgage and you don’t do your own math, who can you blame but yourself when it turns out that you can’t afford it?

In articles asserting that white working people with jobs increasingly identify themselves as Republicans, Haidt claims that Democrats promise to care for the elderly, young, students, the poor and the middle class, “but most Americans don’t want to live in a nation based primarily on caring.  That’s what families are for.”  In fact, almost half of all households receive government benefits based on 2010 statistics, but most of the benefits go to the elderly (65 or older—53 percent), disabled (another 20 percent) or members of non-elderly, non-disabled working households (18 percent).  Only 9 percent goes to non-elderly, non-disabled people without jobs.

The 9 percent, of course, includes unemployment insurance for people who have lost their jobs in the recession.  The economy shed millions of jobs after the housing and credit bubbles burst, and not everyone who lost a job was going to find a new one.  Unemployment insurance, which dates back to FDR’s original Social Security Act of 1935, is considered a countercyclical automatic stabilizer of the economy.  FDR hated doling out money or even paying people for government work as much as anyone, but he knew that the economy couldn’t recover when so many consumers were not spending money because they weren’t earning any.

What Democrats really stand for—or should—is first and foremost the restoring of an economy based on full production and full employment such as we last saw in the Clinton years.  While taxpayer-funded programs like unemployment insurance may be appropriate policies to achieve such an economy, Democrats need to listen to the concerns of working voters who don’t like paying for others they think of as free riders and explain their reasons if they want to win their votes.

Democrats need also to explain the purpose of the ACA, which is to provide taxpayer- subsidized, community-rated, private health insurance to citizens and legally resident aliens who don’t obtain such insurance through employment and don’t qualify for Medicaid.  Community-rated is what allows people with current health issues to be covered and requires people without them to participate.  But as Princeton’s Uwe Reinhardt points out, ACA is just copying employment-based health insurance, which is also taxpayer-subsidized and community-rated.

ACA is polling terribly right now, although the Massachusetts Act, aka Romneycare, on which ACA is based seems to be quite popular among the residents of that state.  I suspect that if it survives to 2014, when most of its provisions kick in, ACA will in time join Social Security and Medicare as programs the public doesn’t want to give up.

My Letter to the President Concerning Climate Change and the Integral Fast Reactor

May 11, 2012

The Honorable Barack H. Obama

The White House

1600 Pennsylvania Avenue NW

Washington, DC  20500

Climate Change and the Integral Fast Reactor

Dear President Obama:

I write as a private citizen on behalf of myself and my grandson, Cavanagh, age 4, and his sister or brother whose arrival is anticipated this fall.

I believe that today civilization is facing its greatest threat ever in the form of climate change.  The principal cause is industrialization’s reliance for energy on fossil fuels, which emit climate-changing greenhouse gases.  The principal cure is a revolutionary new climate-stabilizing source of energy called the Integral Fast Reactor (IFR).  The advantages of this technology are summarized in my one-page attachment to this letter.

Forty-seven years ago President Johnson was warned by his science advisors that fossil fuel emissions could cause “uncontrollable” changes in climate—and he so warned Congress.  Climate change is a global problem, of course, but the United States was then, as now, the leader of the free world community.  It also happens to be the leader in climate change; its emissions of the most persistent greenhouse gas over the last century and a half are three times those of any other country.  The United States should, therefore, be leading the world in a global response to climate change.  Instead, it is doing, and has done, nothing.

Churchill said you can always count on Americans to do the right thing—after they’ve tried everything else.  For my grandchildren’s sake, I hope that’s true, but my reading of history leads me to believe that doing the right thing always requires strong political leadership.  It took all of FDR’s skill and commitment to prepare an isolationist-minded country for World War II; still, extension of the peacetime draft just four months before Pearl Harbor passed the House by only one vote.  Preparing a conservative-minded country for a change to climate-stabilizing energy sources requires equal skill and commitment.

Climatologist James Hansen wrote you (as President-elect) with three recommendations: phase out coal-fired power plants that don’t capture and store carbon emissions; enact a rising tax on fossil fuels with proceeds refunded to consumers; and fast-track the R&D of 4th-generation nuclear power such as the IFR.  Last fall serial entrepreneur Steve Kirsch suggested (in a letter to your assistant Heather Zichal) that you meet with Charles Till, former director of IFR development at Argonne National Laboratory.  I write to add my grandchildren’s voices and my own to theirs: IFR is the key to stabilizing the climate.

Sincerely,

Attachment: Integral Fast Reactor

Nuclear power systems create heat through nuclear fission for steam turbines to generate electricity.  The Integral Fast Reactor (IFR) is a nuclear power system developed at the US Argonne National Laboratory that replenishes, recycles, refines and fabricates its unique metallic fuel and meets all five criteria for 4th-generation nuclear power listed below.

1.   Reduce the volume and toxicity of nuclear waste.

Existing nuclear light water reactors (LWRs) use only one percent of their uranium fuel and leave vast amounts of radioactive spent fuel including plutonium as toxic waste to be sequestered for multiple thousands of years.  IFR pyroprocessing recycles its spent fuel until all the longest-lasting radioactive elements have been used up.  Its much smaller amount of much less toxic waste needs to be sequestered for only 300 years.  Pyroprocessing can also recycle LWR spent fuel for IFR use.

2.   Keep nuclear materials unsuitable for direct use in weapons.

Nuclear fission weapons use uranium (as at Hiroshima) or plutonium (Nagasaki).  While weapons-grade uranium has to be enriched to increase its fissile isotope, U-235, from under one percent of natural uranium to more than 80 percent, weapons-grade plutonium can be chemically separated from the uranium that breeds it.  But in electro-refining during IFR pyroprocessing, plutonium is mixed with other elements that make it unsuitable for weapons.

3.   Be passively safe based on characteristics inherent in the reactor design and materials.

Because its fuel is a solid metallic alloy, IFR responds automatically to overheating caused by loss of coolant flow (as at Chernobyl) or output heat sink (Three Mile Island, Fukushima) by slowing or shutting down its reactor power.  Overheating causes metal fuel in core assemblies to expand, thereby increasing reactor size by a miniscule amount but enough to increase neutron leakage that reduces reactivity and overheating.  Other features—liquid sodium metal coolant with high boiling temperature; large sodium-filled reactor pool resisting the temperature increase; and the weak effect in metal fuel of a natural (stored Doppler) tendency to increase reactivity—provide the time and safety margins for the thermal expansion to take effect.  The metal fuel also has a low melting temperature; when all else fails, it will start melting and then disperse, reducing reactivity.

4.   Provide a long-term energy source not limited by resources.

By recycling its used uranium fuel and the plutonium fuel that it breeds from uranium, IFR increases the productivity of mineable uranium a hundred-fold.  (Plutonium, a natural element like uranium, has to be bred from uranium since it has no mineable sources.)  If IFR or a similar breeder supplied all of the world’s needs for electricity, uranium supplies could last as long as the planet.  Thus IFR is as “renewable” an energy source as solar, wind, water and geothermal.

5.   Be economically competitive with other electricity sources.

Since IFR’s systems are small, simple and designed for remote manufacturing, its capital costs should be competitive.  If the cost of waste storage are accounted for in the operating costs of LWRs and the negative externalities of greenhouse gases, toxic emissions and non-conventional mining in fossil fuel plants, IFR should be a runaway winner.  Its 24/7 availability wherever steam turbines can operate should make it competitive with solar, wind, water and geothermal power.

In 1994 Congress upheld the President’s termination of IFR development as “unnecessary.”

References: Yoon I. Chang, “Advanced Nuclear System for the 21st Century” (2002), http://www.ipd.anl.gov/anlpubs/2002/04/42922.pdf; Charles E. Till, “Plentiful Energy and the IFR Story” (2005), http://www.sustainablenuclear.org/PADs/pad0509till.html; and Till and Chang, Plentiful Energy: The Story of the Integral Fast Reactor (2011), ISBN 978-1466384606.  (Revised 6/17/12)

The Silver Bullet for Climate Stabilizationo

In 1994, the Clinton administration induced Congress to terminate development of the Integral Fast Reactor (IFR) at Argonne National Laboratory, describing it as unnecessary, and told its developers to shut up about it.  Thus a technology that has been called the silver bullet we need to stop global warming disappeared into a memory hole.

What is this technology about?

As World War II ended, the US started researching civilian uses of nuclear fission, specifically to heat water for steam turbines that generate electricity.  The research proceeded on two tracks: (1) “thermal” reactors that consume their fission fuel—uranium enriched by increasing the proportion of its “fissile” (readily fissionable) isotope, U‑235, from less than one percent to about four percent; and (2) breeder reactors that optionally replenish their fission fuel— plutonium bred from the “fertile” isotope, U-238, that comprises 99 percent of natural uranium.  While thermal reactors create plutonium as a byproduct and fission it, plutonium is the primary fission fuel of breeder reactors while uranium is their breeding fuel.

Thermal reactors “moderate” the speed of the neutrons created by fission because slow neutrons do a better job at fissioning U-235 than fast neutrons.  Breeder reactors don’t moderate because fast neutrons produce more (fast) neutrons in fissioning plutonium than slow neutrons do and accordingly produce a higher breeding ratio.  Of the neutrons produced by a fission, all but the one that is needed to perpetuate the fission chain reaction are potentially available for breeding, which occurs when U‑238 “captures“ a neutron and becomes (through transmutation) fissile plutonium Pu‑239.

What emerged as the standard for commercial nuclear power was the “2^nd generation” thermal Light Water Reactor (LWR), the first of which was installed at Shippingport, PA in 1957.  LWR uses uranium oxide as a fuel and light (ordinary) water as both a coolant and a moderator.  Today more than 350 commercial reactors are operating in 27 countries, including 100 in the US that produce 20 percent of the electricity.

Meanwhile, breeder development continued at Argonne.  In 1964 the Experimental Breeder Reactor II (EBR-II) started up to test what eventually became the IFR and kept going for 30 years.  Instead of a water coolant, IFR uses liquid metal sodium, which doesn’t moderate neutron speed.  As a fission fuel it settled on a solid metal alloy consisting of uranium enriched with plutonium and mixed with zirconium in something like a 70-20-10% ratio, with uranium used by itself as a fertile “blanket” around the fuel assemblies when IFR is operating as a breeder.

The choice of metal fuel is unique among current “4^th generation” breeder technologies and has important advantages.  Foremost among them is its inherent safety, which in the last analysis means not letting any radiation escape into the outside world.

Metal expands when heated by fission, and when it gets too hot the expansion allows more neutrons to run away, thus “passively” reducing or even stopping fission and lowering the temperature.  In public tests conducted in 1986, neither loss of the internal coolant flow nor loss of the heat sink transferring heat to the steam turbine—the causes of all three of the operating LWR accidents at Chernobyl, Three Mile Island and Fukushima—made EBR-II fail.  Given “a couple of chances to melt down” and release radiation, as one of the nuclear engineers commented, “It politely refused both times.”

Another advantage is pyroprocessing, IFR’s technique for reprocessing its metal fuel and fuel assemblies through standard electro refining to cleanse them of impure fission products.  Performed remotely in a highly radioactive “hot cell” that no one can enter, electro refining mixes the reprocessed fuel in a mixture that makes the plutonium element too impure for use in weapons.  Thus, unlike oxide fuel reprocessing, pyroprocessing poses no risk of nuclear proliferation.

The slow process in IFR operations is breeding—upwards of a decade is needed for an IFR reactor to produce enough surplus plutonium to start up another IFR reactor.  Which raises the question, where will the first commercial IFR reactors get their start-up plutonium?  Although it’s a natural element like uranium, plutonium has no mineable sources.

Bit LWRs have left a large amount of radioactive spent fuel containing plutonium that’s waiting to be buried in some tomb like Yucca Mountain NV for hundreds of thousands of years.  And what’s toxic waste to the LWR is potential fuel to the IFR.  With the addition of a facility to reduce oxide fuel to metal, pyroprocessing can reprocess it and save the US government hundreds of million dollars a year in waste handling costs.

Counting both the uranium that is “depleted” by stripping it of the U-235 that enriches LWR fuel and the fuel itself, LWRs use only one percent of the uranium they mine.  IFR, by contrast, keeps reprocessing its fuel until all of the longest-lasting radioactive elements including plutonium are used up, leaving a much smaller amount of much less toxic waste that needs to be sequestered for only 300 years.  And since depleted uranium is still fertile, IFR can use it, too.

While uranium resources are plentiful, they’re not unlimited.  But IFR extracts a hundred times more energy out of uranium than LWRs.  If IFR reactors supplied all of the world’s electricity needs, uranium would last as long as the planet.  In this sense IFR is as “renewable” an energy source as solar, wind, water and geothermal power.

The economics of IFR as a base load power producer have yet to be established.  But given the intermittence and geographic limitations of these alternative non-carbon energy sources, and the high cost of LWR waste, IFR should be very competitive.  And compared to fossil fuel power, if the negative externalities of their greenhouse gases and toxic emissions are properly accounted for, IFR should be like Secretariat at the Belmont in 1973—a runaway winner.

IFR generates power safely and efficiently and is the key to climate stabilization.  The problem is political: how do we get it back on track?

The Strategic Corporal in Afghanistan

In 1999 Commandant of the Marine Corps Charles Krulak wrote an article on “The Strategic Corporal: Leadership in the Three Block War.”  It depicts a corporal, the entry level for non-commissioned officers (NCOs), who is equally skilled at leading a squad of a dozen volunteer enlisted Marines in warfighting, in peace-keeping and in humanitarian assistance.

The Three Block War is a metaphor for the environment in which all of these skills may be needed more or less simultaneously.  “In Bosnia, Haiti, and Somalia the unique challenges of military operations other-than-war . . . were combined with the disparate challenges of mid-intensity conflict.”  In conflicts like these “Marines may be confronted by the entire spectrum of tactical challenges in the span of a few hours and within the space of three contiguous city blocks.”

The reason why the corporal in charge is a Strategic Corporal is that he may at times “be the most conspicuous symbol of American foreign policy and …  potentially influence not only the immediate tactical situation, but the operational and strategic levels as well.”

It’s a lot to ask of a 19-22-year-old corporal with 2-3 years of service.  All the more so since generals also expect NCOs to “be able to read the cultural terrain” like majors and colonels.

Afghanistan may not be the kind of Three Block War General Krulak had in mind, but it certainly involves military operations other-than-war since the US is engaged in a counter-insurgency (COIN) campaign (even if we’ve stopped calling it that) to win the hearts and minds of Afghan civilians as we suppress what we regard as an insurgency by the militant Islamic Taliban faction.  Think of it as a Two Block War.

But in this war where every soldier or Marine has a cell phone with camera and texting and 24/7 connection to the Internet, we are far more likely to hear about bad symbols of US foreign policy than good ones.  To mention one of the worst, in March 2012 Robert Bales, an Army staff sergeant and family man with a good record and three prior combat tours in Iraq, left his base one night and murdered 16 Afghan men, women and children.

To the Afghans, however, the carelessness of  US military authorities in burning copies of the Koran in its possession was even more horrendous.  If their violent reaction surprised you as it did me, we both obviously need help reading the cultural terrain.

Is this just war as it always has been?  Is Afghanistan just Vietnam for slow learners?  

I see differences.  One is that many of the troops who fought in Vietnam were draftees.  The protests of their family and friends and veterans and sympathizers back home became noisy and raucous as the war continued without apparent progress for eight years.  To derail such opposition, President Nixon let the draft expire, and we’ve fought every war since with all-volunteer forces (AVF).  Although the Afghan war has gone on without apparent progress longer than Vietnam, there are few protests.  The public is unengaged.

So is Congress.  Current defense budgets are higher in real (inflation-adjusted) dollars than at any time since World War II, including the Vietnam years, but we have fewer combat brigades (look inside this book) because fewer budget dollars trickle down to the AVF.  So to fight two smaller-than-Vietnam wars in Iraq and Afghanistan, the military has had to resort to multiple combat deployments, not only of regular forces but also of reserve and National Guard units.  How do reserve and Guard members hold a job when every third year they’re called back into active duty?

Another difference is in the nature of combat.  Mines and booby traps are part of every war, but in Iraq and now in Afghanistan it’s as if they’ve taken it over, at least in the minds of the AVF on the ground.  Their name, improvised explosive devices (IEDs), suggests how easy they are to make and install, and indeed they’re encountered in every block of the Two Block War.  IEDs also cause injuries that may be worse than the military is prepared to recognize or knows how to treat.  Inadequately treated, the trauma may be exacerbated by the strains of successive combat deployments.  How else to understand what Sergeant Bales did?

A fourth difference is that Vietnam never had any strategic justification other than the domino theory, which was based on serious misreading of the cultural terrain in Southeast Asia and, for that matter, in world communism.  Afghanistan, by contrast, had a clear justification: attacking Al Qaeda, the perpetrators of 9/11, and denying them their safe haven under the Taliban.

But today Al Qaeda is in hiding across the Afghanistan border in Pakistan with many of its leaders killed, including its founder, Osama bin Laden, and others hounded by aerial drones and commandos.  It has no safe haven under the Taliban (whose leaders are also in hiding) or anywhere in Afghanistan.  Nor has it successfully attacked the US since 9/11.

Our war with the Taliban has now come to resemble Vietnam—without apparent progress or strategic purpose—and is impairing both the health and morale of the AVF.  It is time to end the former and restore the latter.  Given our refusal to deal with the greater threats of global warming, as another Marine general warned, we’re going need the AVF for other wars.

Annulling Healthcare?

It seems unreal that the Supreme Court might kill the Affordable Care Act (ACA) on the grounds that requiring everyone who can afford health care insurance to have it by 2014 or pay a compensatory penalty is unconstitutional.  Although Congress can regulate health care and insurance under the Constitution’s grant of power to Congress “To regulate Commerce . . . among the several States,” a majority of five justices may decide that the individual mandate (as the requirement is called) isn’t included in that power.

ACA is complex, but its purpose is clear – and clearly tied up with the individual mandate.  In an e-book I recently published, Vote 99 Percent, which is about key issues that voters in 2012 need to understand, I undertook to explain the gist of each issue in 200-300 words.  Here’s what I wrote about ACA:

The purpose of the Affordable Care Act (ACA) of 2010, most of which doesn’t take effect until 2014, is to provide American citizens and legally resident aliens with access to affordable health care through affordable health care insurance.  People who can’t obtain affordable insurance through an employer and don’t qualify for Medicaid will be guaranteed access to insurance through new health benefit exchanges, with subsidies for those with low income.

Uninsured people who can’t afford health care when they have to have it are often treated at public cost in hospital emergency rooms.  Under ACA they will also be able to obtain insurance at normal rates since insurers will no longer be able to deny coverage or charge more because of current illness or preexisting medical conditions.  But letting people avoid buying insurance until they’re sick increases the insurance risk and its cost for everyone else.  To minimize these costs, ACA’s “individual mandate” requires almost everyone who can afford insurance to have it by 2014 or pay an annual penalty.

Since ACA defers to our current for-profit health insurance system rather than replacing it with a single government payer like Medicare, which insures seniors, ACA’s version of universal health care is less efficient and more expensive than in other industrialized countries like Canada.  But along with Medicare and safety-net programs like Medicaid, ACA will be as vital to the economic security of the 99% as Social Security.

Congress should not eliminate or privatize or cut back on any of these programs.

                                                                —

Insurance companies control their risks by excluding people with higher risks of illness either by denying them coverage in the first place or by capping the amount of their coverage or canceling their policies when they get sick.  ACA will eliminate these practices, thereby increasing the risk and consequently the cost of insurance.  But requiring healthy people to buy insurance will lower the risk and cost of insurance, offsetting in some measure the increased risk and cost of covering less healthy people.

That’s the essential scheme of ACA—finance the cost of extending health care to high-risk people who really need it but can’t get it without ACA by creating the individual mandate.  Universal health care means everyone’s in, and taxes on insurance and pharmaceutical companies and wealthier individuals will subsidize health care for poorer people who can’t afford to buy insurance.

For the Supreme Court to decide that buying health care insurance is part of interstate commerce that Congress can regulate but not buying insurance is not part of interstate commerce would be truly bizarre.  All the more so since universal health care could be achieved by expanding Medicare to cover everyone and financing the additional coverage through payroll taxes.  Doing so would rely on Congress’ Constitutional power to lay and collect taxes to provide for the general welfare, the power that Congress exercised when it created Social Security and Medicare in its present form.  Everyone is taxed, so wouldn’t need an individual mandate—or for that matter private health insurance.

During oral argument the most senior associate justice on the court suggested that if the power to regulate interstate commerce justified the individual mandate, it could justify anything, including making people buy broccoli.  “Everybody has to buy food sooner or later, so you define the market as food.  Therefore, everybody is in the market.  Therefore, you can make people buy broccoli.”

Well, maybe.  But since the price of commodities like broccoli is largely determined (in the absence of scarcity) by the costs of producing and distributing them, making everyone buy them isn’t likely to lower their price very much.  But the price of health insurance is determined by the health risks that determine when (if ever), how often and how much money the insurer will have to pay out.  Adding healthy people to the insured pool lowers its health risks and therefore its price.

Economists understand this, and indeed the leading expert on the individual mandate is MIT economist Jonathan Gruber.  He estimates that losing the individual mandate would reduce the number of currently insured people who will be covered by ACA from 32 million to 8 million and perpetuate “our unfair individual insurance markets in a world where employer-based insurance is rapidly disappearing.”

Economists understand the difference between health insurance and broccoli, but if five of the nine lawyers on the Supreme Court don’t, ACA will be gutted.  We’ll find out in June.

Standing Your Ground While Armed

Early in the dark and rainy Sunday evening of February 26, 2012, Trayvon Martin, a tall, slim 17-year-old African-American boy, walked from the home of his father’s fiancée in Sanford, FL, a suburb of Orlando, to buy a can of ice tea and a package of Skittles candy from a 7-Eleven.  Martin, who lived with his mother in Miami, was visiting his father during a ten-day suspension from high school after traces of marijuana were found in his book bag.

On his way back from the 7-Eleven, Martin was observed by a neighborhood watch coordinator named George Zimmerman, a hefty white man in his latter 20s whose mother was Peruvian.  Zimmerman thought Martin looked suspicious and called 911 from his SUV.

The neighborhood in question was a gated community called Retreat at Twin Lakes which had a problem with burglaries.  The previous fall, at Zimmerman’s request, a representative of the Sanford Police had met with a couple of dozen Twin Lakes residents to set up a neighborhood watch.  Their role, the representative told them, was to be the eyes and ears of the police, not vigilantes, and they should avoid confrontations and call the police from the safety of their homes or cars.

The residents designated Zimmerman as their watch coordinator.  Zimmerman, who worked as an analyst at a mortgage firm, watched the Twin Lakes neighborhood in the evening.

Despite some history of violence, Zimmerman had obtained a permit to carry a concealed handgun, which is easy to get in Florida.  Although neighborhood watchers don’t possess police powers and supposedly don’t carry weapons, on the evening of February 26th Zimmerman was carrying a concealed 9 millimeter handgun.

When he called 911, Zimmerman told the police dispatcher of his suspicions about the person he described as a black teenager and then commented, “These assholes, they always get away.”  (At minute 1:38 of the first of eight edited tapes later released by the police)  The dispatcher (at 2:23) asked if Zimmerman was following the teenager, and when Zimmerman said he was, the dispatcher said that the police don’t need you to do that.  But Zimmerman, who had gotten out of his SUV, continued to do that.

Meanwhile, according to a girlfriend with whom Martin was conversing through a headset connected to a cell phone in his pocket, Martin mentioned someone was following him.  She told him to run, but he wouldn’t.

Shortly thereafter, before the police arrived, Zimmerman and Martin met up.  According to Zimmerman, he had lost sight of Martin and was returning to his SUV when Martin came up behind him and accosted him.  They got into an argument and then Martin decked him with one punch, jumped on top of him and started banging his head on the walkway.

Zimmerman was calling for help, according to one eyewitness, who told Martin (presumably) to stop and then went into his home to call 911.  Before he reached his phone, he heard at least one gun shot.  “And then, when I got upstairs and looked down, the guy who was on the top beating up the other guy, was the one laying in the grass, and I believe he was dead at that point.”

Another eyewitness, a teenage boy who was walking his dog, told the 911 operator that he saw a man in a red shirt (Zimmerman) on the ground who was screaming and needed help.  Later, chasing his dog, he heard a gunshot and then the screaming stopped.

By that time, several residents were calling 911.  When the police arrived, Zimmerman admitted that he killed Martin but claimed self-defense.  The police made a cursory investigation, found no reason to doubt Zimmerman and released him without charges.  Over the course of the next month, protests over the police inaction and the killing grew rapidly throughout the country and even abroad.

But the Sanford police inaction was consistent with how the courts interpret Florida’s law on the justifiable use of force, which is to free assailants claiming self-defense unless they determine that there is probable cause that the use of force was unlawful.  In a case in Miami a month after Martin was killed, the judge dismissed a murder case against a young man who had chased down and stabbed a suspected burglar on the grounds that his claim of self-defense was credible.

In 2005 Florida enacted a Stand Your Ground law promoted by the National Rifle Association (NRA), which exists to promote the sale of firearms.  A key section provides in part that “a person is justified in the use of deadly force and does not have a duty to retreat if:

“(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;” [emphasis added]

In the years since enactment, justifiable homicide cases have tripled.  Florida is on its way to becoming a new state-wide O.K. Corral reality show.  Who or what is to blame?

In the senseless and tragic death of Trayvon Martin, however the conflicting stories are resolved, George Zimmerman is to blame.  He became a vigilante—a person who is not a member of law enforcement but who pursues and punishes persons suspected of lawbreaking—in pursuit of an innocent man whom he killed with a concealed weapon.

In the larger context, the real culprits are Florida’s Stand Your Ground law and the state’s policy of encouraging its residents to arm themselves and carry concealed weapons.  In concert they elevate every angry confrontation into a potentially lethal one.