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Why Has Chief Justice Roberts Moved From Umpiring To Batting On Healthcare? (Forbes.com) June 26, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Could someone please remind Chief Justice John Roberts of his opening statement to the Senate Judiciary Committee in his confirmation hearings in 2005?  That’s when he described his all-important judicial philosophy by saying:  “Judges are like umpires.  Umpires don’t make the rules; they apply them…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”  I ask because his majority opinion in the King v. Burwell case this week is the second time he has rewritten the Affordable Care Act (ACA) in order to save it, moving out of the umpire’s stance directly into the batter’s box.

In King v. Burwell, the Court needed to decide whether the phrase “an Exchange established by the State” meant just state or could include federal exchanges.  Justice Roberts, writing for a 6-3 majority of the Court, found the language was ambiguous, which permitted the Court to look more widely at the purpose of the law and decide its purposes would not be accomplished if state didn’t also mean federal.  In his sharp dissent, Justice Scalia said, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

The general view around Congress had been that the language had simply been a mistake.  Indeed, the Court acknowledged that the ACA “contains more than a few examples of inartful drafting.”  The Court cited a few reasons for this, including debates behind closed doors and the use of a “reconciliation” legislative procedure that limited debate and amendments.  I could add a couple more:  passing a huge overhaul of a major system like healthcare without sufficient care (Nancy Pelosi’s famous, “but we have to pass the bill to find out what’s in it”) and slamming it through on a straight party line vote.  As the old car repair commercial used to say, you can pay me now (preventive maintenance, getting it right) or you can pay me later (repairs) and this law has been paying later.

But Roberts apparently does not want the ACA to pay too much for its repairs by returning it to Congress to get it right.  So twice now, he has essentially rewritten the bill to fix it himself.  In the first case, the Court having found that Congress lacked power to pass the ACA under its commerce clause power, Roberts reinvented its basis as a bill valid under the taxing power.  This time, he reinvented State Exchange (capital letters) to mean state and federal.

It is not the role of the Court to fix another branch’s mistakes.  So why is Roberts willing to do this?  I believe it is a misguided calculation that he has to engage in a little judicial activism in repairing the law in order to avoid a perception of even greater judicial activism by invalidating the law.  He seems to be so concerned about lowering the volume on controversial Supreme Court decisions that he is willing to be a judicial activist in order to protect the Court’s reputation against charges of judicial activism.  It makes no sense, in the same way that the officer who said “We had to burn down this village in order to save it” made no sense in Vietnam.

John Roberts turns out to be another disappointing judicial appointment for conservatives, moving strike zones, saying words have no obvious meaning, and rewriting the law to fix Congressional errors.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/25/why-has-chief-justice-roberts-moved-from-umpiring-to-batting-on-healthcare/


Rugged Individualism Is Exactly The Wrong Case for Obamacare (Forbes.com) June 15, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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President Obama has been heating up the rhetoric about Obamacare as the Supreme Court prepares to announce its decision on whether the whole program might collapse over illegal subsidies.   In a press conference, he meddled in the work of the judicial branch, saying the Court should never have taken the case in the first place.  The next day, he summoned up American rugged individualism in its defense, saying:  “The rugged individualism that defines America has always been bound by a set of shared values; an enduring sense that we are in this together. That America is not a place where we simply ignore the poor or turn away from the sick. It’s a place sustained by the idea that I am my brother’s keeper and I am my sister’s keeper.” I’m sorry, Mr. President, but America’s rugged individual—bounded or not– is the last place to look for defense of federalizing healthcare.

The idea of the rugged individual was captured in historian Frederick Jackson Turner’s “frontier thesis,” explaining how the American character had been developed battling the elements and conquering the territory of the American West.  The first use of the actual expression “rugged individualism” was by Herbert Hoover in his campaign for president in 1928, explaining why the great concentration of federal power built up during World War I should be returned to the people in peacetime.  He contrasted the American system of self-reliance and “rugged individualism” with the European systems of paternalism and socialism.

Yes, it is true that American rugged individualism is often accompanied, even limited, by something else.  But that something else is not federal mandates such as Obamacare.  Perhaps what Obama was aiming for, but missed, was what the French journalist and philosopher Alexis De Tocqueville observed when he visited America, noting that Americans were forever associating and helping one another, whether through churches or civic associations of every shape and form.  Even life on the American frontier involved a lot of collaboration, along with individualism.  But these were voluntary community efforts, a kind of public virtue, not statism.  Efforts by the state—such as Obamacare—are precisely the opposite of individualism.

Beginning with Progressivism and the New Deal, the modern welfare state became the alternative to rugged individualism, and Franklin Roosevelt’s “forgotten man” began to replace the “rugged individual” as the object of federal policy.   The two should ideally live alongside one another, if Washington leaders would allow room for both.  So, for example, even among the excesses of Lyndon Johnson’s Great Society, there would nevertheless be space for individual and corporate health care policies for rugged individuals, and then the safety net of Medicare created for the forgotten man.

But, alas, Obamacare neither sought nor found a balance between the rugged individual and the forgotten man.  It turned out that if you liked your policy, you probably could not keep it, Mr. Rugged Individual, as millions of policies became “illegal” because they did not cover everything Obamacare insisted upon.  Of course it’s hard to find balance when you ram through a massive overhaul of the health care system on a party-line vote, without a single member of the “other” party voting in favor.  So rather than creating two systems—one a rugged individual’s personal or workplace policy and the other a safety net for the forgotten man—Obamacare created one, large system, essentially federalizing healthcare.   This is not rugged individualism bounded by public virtue—this is a federal takeover, pure and simple.

While there is widespread agreement that individualism is part of the unique character of Americans, policymakers in Washington have been steadily killing it since the New Deal.  It would help if the President understood rugged individualism and then allowed it a place at the policy table, rather than continuing to suppress it in the quest to federalize everything from education to healthcare and the environment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/15/rugged-individualism-is-exactly-the-wrong-case-for-obamacare/

The Supreme Court Case of the Year (National Radio Commentary / Salem-Townhall.com) March 5, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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This week the U.S. Supreme Court heard arguments in its most important case of the year:  King v. Burwell.

In some ways, it’s a simple case:  did Congress mean what it said when it provided for subsidies for low-income individuals in states that establish healthcare exchanges?  Since two-third of states have chosen not to create exchanges, the Obama administration has decided state exchange includes the federal exchange. So the Supreme Court is asked to fix what’s presented now as a “glitch” or “drafting error” in the bill.

All courts are bound to the plain meaning interpretation of laws—that words take on their ordinary meaning unless the law provides a specialized meaning. So: state means state.

But if millions lose their subsidies over this, perhaps the Court becomes nervous and decides to rewrite the law.  Maybe they fear a divided Congress won’t be able to fix it.

But the Court should do its proper job, the Congress should fix its own mistakes—and the administration should live with the consequences.

Link to Salem-Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699414


Brace Yourself For The Most Important Supreme Court Case Of The Year (Forbes.com) February 27, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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On Wednesday, the U.S. Supreme Court will hear oral arguments in its most important case of the year, King v. Burwell.  The case is most obviously significant because it could invalidate subsidies for low income individuals covered by Obamacare in the approximately two-thirds of states that did not establish their own exchanges.  This in turn could leave millions of people essentially without healthcare, unless and until Congress or the states did something to repair the problem, all of which is being worked on now.

But at a more subtle level, this case is an important indicator of what the Supreme Court is willing to do (and not do) in an era of deeply divided government in Washington.  The question here is whether the Supreme Court should play the role of proofreader or auto-corrector when Congress legislates without sufficient care and is too conflicted to address the problem itself.  You would like to think that a sweeping change such as Obamacare was worked through with great care, including lots of drafting, testimony, amendments and compromise, all the hallmarks of good legislative work.  But if you think that’s how Obamacare was adopted, your memory is faulty.  The bill itself was massive (one version ran over 2400 pages, the final 906 pages), prompting House Speaker Nancy Pelosi’s plea:  “But we have to pass the bill so that you can find out what’s in it.”  And the most sweeping social program since the 1960’s was slammed through on a straight party-line vote, with no Republican support.

Even when a bill is passed, it’s just the beginning.  Various agencies then must adopt regulations and structures to implement the law (so far 10,000 pages and still counting).  And, of course, in this case President Obama has weighed in through executive orders, unilaterally (and probably illegally) changing and delaying aspects of the law.  Even Chief Justice Roberts took it upon himself in an earlier case to give the law an extreme makeover, transforming it from an unconstitutional penalty into a constitutional tax in order to save it.

So now the Supreme Court is faced with the clear provision in the law that subsidies are available to people who live in states with healthcare exchanges “established by the State.”  Since most states elected not to establish their own exchanges, the plaintiffs argue that no subsidies should be available in those states.  It has been described as a “glitch” or a “drafting error” by Congress.  And so, the argument goes, the Supreme Court ought to fix it, and simply declare that state-run exchanges really meant to include federal exchanges as well.   To refuse to do so would be, as New York Times commentator Timothy Egan put it, “one of the most brazen manipulations of the legal system in modern times.”

In fact, it is the other side that is straining to redefine clear terms.  Courts are bound by the “plain meaning” rule of interpretation:  unless a statute provides a specialized meaning, courts should apply the ordinary meaning of the word.  Clearly, if Congress meant something other than “established by the State” it could and should have said so.  And the obvious legal approach for any court to take in such a case is to rule that the law means what it says and send it back to the legislature if they want it to mean something else.  Courts are not legislators—as Chief Justice Roberts famously said in his confirmation hearing, judges are more like umpires, calling balls and strikes.

Ah, but here’s the problem.  By pushing the bill through without compromise or support from both parties, the bill lacks not only careful drafting but also bipartisan support.  That is the blowback from a party-line vote:  no one from the other side has enough ownership to help you fix it later.  It’s like that old car mechanic commercial:  you can pay me now (upfront, preventive maintenance) or you can pay me later (expensive, or in this case impossible repairs when it blows up).

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/27/brace-yourself-for-the-most-important-supreme-court-case-of-the-year/

Why Obamacare Is Still On The Legal Ropes After 4 Years (Forbes.com) August 4, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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The Affordable Care Act (ACA) is nearly 4.5 years old, yet it seems to have spent most of its life in one courtroom after another with its legal viability still hanging in the balance.  In a report issued last summer, the National Health Law Program had tracked 89 federal court challenges to the ACA.  And the recent decision by the federal D.C. Circuit Court of Appeals that subsidies under the law are only available in those few states that have developed their own health exchanges poses the greatest legal threat yet.  With two federal circuits reaching two different conclusions on that question, the ACA seems inevitably headed to the U.S. Supreme Court once again.

Some see Obamacare constantly brought before judges and find politics and judicial activism.  You may recall that President Obama himself jumped on that bandwagon prematurely, saying in 2012 that the U.S. Supreme Court finding the Act unconstitutional would be an “unelected group of people” turning to “judicial activism or a lack of judicial restraint.”  Ironically, in the view of many, Chief Justice Roberts ended up employing judicial activism, by reinventing a penalty into a tax, in order to rescue Obamacare on that occasion.  Columnist E.J. Dionne recently joined the chorus, calling the D.C. Circuit Court of Appeal decision on subsidies “extreme judicial activism.”  Of course one definition of judicial activism is quite simply a court decision with which you disagree, so all this hand-wringing must be taken with a healthy dose of salt.

In fact, I would submit that there are two very good reasons why Obamacare is still fighting for its life in the courts:  (1) It constitutes a complex and sweeping reform of one of our largest and most important social and business systems and, as such, (2) it was not enacted with sufficient care, debate and legal craftsmanship.

Obamacare is widely seen as the most sweeping social program since Medicare in the 1960s and Social Security in the 1930s.  As such, it also creates one of the largest government bureaucracies—at both the federal and state levels—seen in decades.  So, naturally, this was all done with great care, debate, compromise, amendment, and drafting over time, right?  We all know better.  One version of the bill ran over 2400 pages (the final weighs in at a mere 906 pages), leading to House Speaker Nancy Pelosi’s  clarion call in Washington-speak:  “But we have to pass the bill so that you can find out what is in it.”  And when this biggest and most important social legislation was finally passed, it was jammed through on a party-line vote, with no Republican support.

When Congress passes and the President signs a bill into law, most Americans fail to recognize that the legal work is only beginning.  Various agencies must then develop regulations and government structures to implement the law.  So far we have something over 10,000 pages (in very tiny type) of such regulation.  And then President Obama himself, through executive orders, has been unilaterally changing and delaying aspects of the law right along, arguing that more time is needed to draft and develop the implementing regulations and systems.

Is it any wonder, then, that Congress left a lot of clean up, and even correction of errors, now taken up in the courts?  As the old car repair commercial used to say, “you can pay me now (preventive maintenance) or you can pay me later (more expensive repairs).” If Congress had wanted to spend the time and bipartisan effort to get things right from the start, perhaps many of these questions would not have ended up in court.  Is it a tax or is it a penalty, for example?  In the end, Justice Roberts felt he had to rewrite the law to make that clear.  If Congress didn’t intend the subsidies to be limited to states that created their own exchanges, couldn’t that have been debated and clarified in a congressional committee, rather than in various federal district and circuit courts?

Unfortunately the most sweeping social legislation in 50 years is now getting the care and debate in courts that it should have received, but did not, in Congress.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/08/04/why-obamacare-is-still-on-the-legal-ropes-after-4-years-2/

Congress Actually Decided The Hobby Lobby Case Decades Ago (Forbes.com) June 30, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You can bet on hand-wringing and outrage about judicial activism and political motives behind the 5-4 U.S. Supreme Court decision in the Hobby Lobby case but, in fact, this case was all but decided in 1993 when Congress passed the Religious Freedom Restoration Act (RFRA). Both the liberal justices who dissented in the case, and others who attack the decision as conservative activism, should instead be aiming their arguments at Congress for enacting that law, because today’s court opinion is a relatively straightforward and narrow application of the RFRA.

Unhappy with a Supreme Court decision that narrowed religious freedom (Department of Human Resources of Oregon v. Smith, 1990), Congress took matters into its own hands and passed the RFRA. Whereas the Court in Smith said that “neutral, generally applicable laws could be applied to religious practices even when not supported by a compelling governmental interest, “ the RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Few may understand that Congress, as a co-equal branch with the Supreme Court under the Constitution, has the power to pass laws and, in some cases, thereby alter constitutional interpretation through legislation.

The Religious Freedom Restoration Act, then, established a high bar for any law impacting religious liberty, saying that not only must the government have a compelling interest in doing so, but it must use the “least restrictive alternative” available to accomplish its purposes. That is to say, if there is another way to accomplish the government’s purpose with a lesser restriction on religious liberty, that is what is required. In the case of contraceptive services, the Affordable Care Act (ACA) had already created such an alternative for religious nonprofits (churches and religious associations), providing that insurance administrators make those services available to individuals without imposing any cost-sharing on the religious organization. The Court in Hobby Lobby simply, and narrowly, said: Apply that same alternative to family businesses that have religious objections to the contraceptive services required by the ACA. Nothing dramatic or even surprising here—any politics or activism came in passing the RFRA, not in the Supreme Court’s application of it in Hobby Lobby.

Of course the additional pronouncement in today’s decision was the Court’s holding that such religious rights may be exercised by a business, not just individuals. But this is not unexpected either—lower federal courts, as well as the U.S. Supreme Court, have been laying the groundwork for the idea that individuals do not give up their constitutional rights based merely on the legal form in which their business operates. Indeed, the Dictionary Act, which courts follow in the absence of some special definition in a particular law, defines “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies as well as individuals.” So again, disagree if you want, but your objection is really to those who passed the Religious Freedom Restoration Act without some special definition of “person” or with the Dictionary Act and its broad definition.

Indeed, even though the Court was clear that its Hobby Lobby decision only applied to a family-owned business, we should anticipate that one or more publicly-held companies will soon bring a follow-on case, claiming they also have religious rights. The Court commented in Hobby Lobby that this seemed “improbable” because of the “practical restraints” of a diverse set of shareholders sharing religious beliefs. But nothing in the RFRA or in the Court’s decision would prevent a publicly-held corporation from stating religious views and, as long as shareholders were aware of those when they purchased the stock, it would seem such rights should also be protected. In any event, it seems likely one or more such public companies will try.

In short, the Hobby Lobby decision should not have been a surprise. The underlying religious freedom issues were resolved 21 years ago when Congress passed the Religious Freedom Restoration Act. And the notion that corporations are people has been in the Definition Act since 1947. Dissenters argue that the increasing diversity of our society demands different definitions and outcomes, but this ignores two important points, one of process and one of substance: Let them amend the laws, if they wish, to make their point, rather than relying on judicial interpretation and activism, and allow their own understanding of a diverse society to include those committed to the free exercise of their religious beliefs.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/06/30/congress-actually-decided-the-hobby-lobby-case-decades-ago/

The Supreme Court Could Burn Down Obamacare In Order To Save It (Forbes.com) January 13, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Few recall that after the opening 100 days of the New Deal–when Franklin Roosevelt and the Congress ran a prolific two-minute offense passing bills, creating an alphabet soup of new government agencies and spending money in an effort to counter the Great Depression—the U.S. Supreme Court did everyone a big favor by declaring the centerpiece of it all to be unconstitutional. Oh, it didn’t seem like a favor to Roosevelt and his allies when the Court said a key part of the National Industrial Recovery Act was an unconstitutional overreach of federal power. In fact, Roosevelt was so angry about it that he initiated his ill-fated plan to pack the Court with new justices.

But looking back, most historians and economists agree that stopping the NIRA was a very good thing, indeed. Not only was it a vague and excessive delegation of power over private markets to the federal government, but it was bad economic policy to boot. It mistakenly treated falling prices as a cause, not effect, of the economic crisis and tried to address it with cartels to regulate outputs and prices, creating a huge bureaucracy to do so. As Amity Shlaes points out in her book, The Forgotten Man, in a year some 10,000 pages of federal regulations had been created under the NIRA, more than doubling the entire federal canon since the Founding. The bill was developed haphazardly and, by all accounts, it needed to be killed somehow. The Court provided a convenient way out.

Funny, but it sounds like a history that should repeat itself now with Obamacare. You know, the 2000-page bill that House leader Nancy Pelosi said, in classic Washington doublespeak, we had to pass so we could read what’s in it? The bill that has generated so much regulation that Obamacare chief Kathleen Sebelius couldn’t tally it up in testimony last month (turns out it is 10,000 pages, like FDR’s NIRA). The bill that, despite promises you could keep your own policies and doctors, ended up rendering millions of health plans illegal, destroying more health insurance than it created, at least in the early going. A law that has never been popular and grows less so every time it is polled.

My point is that, just as FDR could not see or politically afford to acknowledge the serious problems of the NIRA and received a huge favor when the Court declared it unconstitutional, we are in the same position today with respect to Obamacare. The NIRA at least had bipartisan support, but Obamacare was famously passed on a one-party vote and, rather than taking a surgical approach to fixing problems of healthcare policy, it undertook an extreme makeover (federal takeover) of healthcare. It has been beset by constant problems of implementation. You can hardly get through the website to buy it and, when you do, you find the price is much higher than you expected. So far it has managed to disappoint almost everyone.

The good news is that there are still court challenges out there that could undo it. The most promising challenge started in Oklahoma, but is now being brought in federal courts in 4 states, pointing out that buried in that language Nancy Pelosi and her colleagues did not read was a provision that federal subsidies for healthcare are only available where there are state health exchanges. Since 34 states declined to create their own exchanges, leaving their citizens on the federal exchange, most people would not be eligible for subsidies, which is crucial to Obamacare’s main priority, providing universal coverage. Nor would employers and individuals be subjected to related fines, which is a key part of the financing of Obamacare. The IRS, in a remarkable overreach, attempted to fix this by writing a regulation that ignored the plain wording of the law, all of which is now under court challenge. This seemingly small problem of wording, in fact could not be bigger for the future of Obamacare. As the first challenger, Oklahoma Attorney General Scott Pruitt put it, the Affordable Care Act would “crumble” if this court challenge is upheld.

If you’re old enough to remember the Vietnam war, you’ll recall the legendary, some say mythical, statement by a military officer: “we had to destroy the village in order to save it.” Like Roosevelt’s NIRA, Obama’s ACA may only be rescued if a court stops it cold and cooler, more deliberate heads work much more diligently on the smaller-scale, tailored and blended public/private approaches that could, in fact, improve the healthcare system.

Link to Forbes.com article: http://www.forbes.com/sites/daviddavenport/2014/01/13/the-supreme-court-could-burn-down-obamacare-in-order-to-save-it/

National Radio Commentary on Salem/Townhall: Obamacare Breakdown is a Liberty Moment January 8, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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The breakdown of Obamacare has delivered some powerful messages that should resonate for a long while.

First, big government doesn’t work. It can’t build robust websites, sign up people or deliver on its promises.

Second, we don’t need a complete government takeover of something like health care to meet the needs of the 15 percent or so who wanted health care and couldn’t get it. Small, tailored solutions make more sense.

Third and most important, this is a liberty moment. Millions of Americans are angry because they don’t have the freedom to keep their own policies. The government has taken working policies and declared them illegal.

Conservatives are for liberty and against big government. But to many people—especially young people—those messages have become abstract. Thanks to Obamacare, they are now very real and highly relevant.

Let’s not let the country forget it.

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/695384

How the New Deal Defines the Debate Over Obamacare with Gordon Lloyd (HNN.US) December 2, 2013

Posted by daviddavenport in Op/Eds.
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The debate surrounding the Affordable Care Act continues  — remarkably — more than three years after it was signed into law. Both liberals and conservatives alike seem to understand that this is not only the signature accomplishment of Barack Obama’s presidency, but the most important extension of the New Deal since the adoption of Medicare and Medicaid in the 1960s. Indeed, the healthcare debate is a reminder that, after eighty years, the New Deal remains as the basic framework for American domestic policy and it is still going strong.

When we go back to examine the debates between Franklin Roosevelt and Herbert Hoover about the New Deal in the 1930s , we come back with a better understanding of principles underlying the public policy debates today.   Both Franklin D. Roosevelt and Herbert Hoover agreed that the quarrel of the 1932 election was, as Hoover said, “more than a contest between two men, more than a contest between two parties.” It was a contest, said Hoover, “between two philosophies of government” that would decide “the direction our nation will take over a century to come.” Roosevelt agreed: March 4, 1933 (his inauguration as president) marked the transformation of America. It was an historic clash between liberty and democracy.

Starting with his 1932 Commonwealth Club campaign speech and continuing through his Second Inaugural Address in 1937, Franklin Roosevelt proclaimed that the old American order of “the financial Titan” and do-nothing laissez faire government had come to an end. “The day of enlightened administration has come,” Roosevelt concluded. It was time for a “new deal” to secure a decent life for “the forgotten man.” We needed to realize, Roosevelt proclaimed, that democracy is actually “a quest, a never ending seeking for better things.” We needed a reappraisal of American values articulated in the Declaration of Independence as well as the Constitution and Bill of Rights, away from the earlier attachment to Jeffersonian individualism and states’ rights and toward an interdependent “national democracy.” We needed to turn away from a focus on the negative rights of the individual that constrains a government already constitutionally divided against itself and move toward a united centralized administration that secures the positive rights of “everyone.”

In his First Inaugural Address, Roosevelt reinforced his intention to move the country away from congressional deliberation to presidential action: “I shall ask the Congress for the one remaining instrument to meet the crisis: broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” And in his Second Inaugural, Roosevelt declared “the challenge to democracy: I see one-third of a nation ill housed, ill clad, and ill nourished. … We are determined to make every American citizen the subject of his country’s interest and concern. …The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.”

Former president Hoover, however, was shocked by the excesses of the New Deal in the 1930s, seeing Roosevelt’s philosophy and governmental programs as “a challenge to (individual) liberty” and a deliberate effort to replace robust, even “rugged” American individualism and a limited but constructive government – what Hoover called the exceptional American System – with a European version of regimented community. The New Deal programs, he argued, represented “a radical departure from the foundations of one hundred fifty years which have made this the greatest nation in the world.”

To be sure, the American System contained imperfections, Hoover acknowledged, but these problems were at the margin rather than systemic.     Besides, the really “forgotten man” was much closer to, say 17 percent to 25 percent, than 33 percent of the population. Accordingly, Hoover argued, there was no need to engage in a radical transformation of basic values, regimentation of the lives of a majority of the people, and treating constitutional principles as the plaything of lawyers. The New Deal “steps off the solid highways of true American Liberty into the dangerous quicksands of governmental direction,” Hoover said. There was no need for “a gigantic shift of government from the function of umpire to the function of directing, dictating, and competing in our economic life.” Hoover urged Americans to resist the temptation to adopt the regimented European System.

This is precisely the debate that continues today. In order to deal with a relatively small percentage of Americans who were unable to obtain health insurance, Obama and his fellow progressives sought to implement a     transformation of the entire healthcare system. Realizing now that they do not have the “liberty” the president promised of keeping their own policies, the American people are even more unhappy with the transformation than before.  Progressives and conservatives alike acknowledge that the Affordable Care Act is doubtless an interim step toward a single-payer (government) system.

The two icons of the 1930s, Hoover’s “rugged individual” and Roosevelt’s “forgotten man,” must learn to coexist. There must be room for both individual liberty — in this case allowing people to earn and keep their preferred health policies — and coverage for those who cannot otherwise get it. The American people seem to understand that Obamacare tips the scales too heavily away from liberty and toward government regimentation. Let’s hope our leaders in Washington, D.C. get that message soon.

Link to History News Network: http://hnn.us/article/154099

Obamacare’s Inept Rollout Reveals What Makes Us American (Forbes.com) November 26, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Former British Prime Minister Harold Wilson famously said, “A week in politics is a long time.”  How right he was.  A couple of weeks ago, Republicans were dead in the water because of the foolish government shutdown.  Now they have been resurrected by the ineptness of the Obamacare implementation and the Democrats are on the political ropes.

But conservatives could take longer-term advantage of a rare political opportunity afforded by the Affordable Care Act:  suddenly the average American, including millions of young Americans, has found out how it feels when the government takes away your liberty.  By declaring millions of health insurance policies illegal for not satisfying the particularized standards of the ACA, the federal government has deprived Americans of all ages of something very tangible that they valued, namely the health insurance policy that was meeting their needs.  In a moment of time, millions of Americans have learned what it means to lose your liberty, the freedom to continue to own the insurance policy you possessed and liked, to government over-regulation.

Just ask Steve Goldsberry of California, whose old policy is now illegal and the new replacement being offered will cost $6000 more.  Calling it a $6000 tax, Mr. Goldsberry understands that this is about liberty and choice:  “I had insurance that was adequate.  I got to choose.  Now I no longer have a choice.”  Pharmacist Cherie Nash-Smith says she will pay the penalty, if she has to, “if politicians keep shoving their health plan vision down my throat.”  Go to the website “mycancellation.com” and read some of the hundreds of letters angry Americans have shared.  The point is that the response is not just about incompetence or expense, it’s about having their right to choose, their liberty, taken away from them.

This is an important moment for modern American conservatism because personal liberty, which has always been the heart of the conservative philosophy, no longer resonates to so many Americans.  Liberty has become an abstraction, an ideal that is not real to twenty-first century Americans.  It seems especially foreign to younger people who have grown up knowing only big government and not appreciating the challenge it creates to liberty.  In a Pew Foundation poll last year asking whether more government was needed to address the problems facing our country, every age group but one said no.  But those under 30 said yes, we need big government to solve our problems.

So when government overreaches, conservatives need to connect that to a loss of personal liberty.  When Mayor Bloomberg wants to tell you what size soda you may purchase, it is not only silly, and ultimately according to a court unconstitutional, but it is a real example of how big government regulation infringes on personal liberty.   And that’s what Obamacare care has provided on a grand scale:  millions of Americans angry at government regulation taking away not just their insurance policy but their freedom to decide what policy to have.  Couples with no children are losing their insurance because it does not provide infant pediatric and dental coverage which they do not need.  Young males can’t keep their present policies because they do not have maternity coverage they don’t need.

Obamacare has become an unplanned national teach-in on government over-regulation and the loss of personal liberty.  I love the young woman quoted in the Los AngelesTimes who, after discovering a dramatic increase in her own health insurance rates, said:  “I was all for Obamacare until I learned I was paying for it.”  Yes, there are many lessons to be learned here.  Conservatives would be wise to stand aside and let the Obamacare implementation disaster unfold on its own, but they would also do well to connect the public anger to their core message of government overreach and the loss of personal liberty.

Link to Forbes.com op/ed:  http://www.forbes.com/sites/daviddavenport/2013/11/26/obamacares-inept-rollout-reveals-what-makes-us-american/