Originally published in
-My writings on the flaws of the Affordable Care Act generated a range of responses, most of which of course begin and end with the reader’s opinion of the legislation. There is no amount of argument that will change the fact that the strongest defenders of the law view any attack on it as indifference to the plight of the sick, or as pandering to win votes or contributions in some hypothetical future campaign (the fact continues to be missed that significant sectors of the lobbying/corporate crowd supported the legislation, and that the first to be up in arms over the mandate’s collapse would be the well-heeled insurance industry).
It is worth addressing the argument that President Obama, and a number of you, have made regarding the “activism” of a Supreme Court that would dare to strike down the mandate or the entire statute. It’s a tempting sounding argument, as I noted in my critique of Judge Wilkinson’s column a couple of weeks ago, but it is one that is hopelessly subjective. Does it mean that the Court should never second guess the political process: that’s hardly an argument that has historically made progressives comfortable. Does it mean that the Court should engage only if there is some kind of “clear”, obvious violation: if so, it means that a constitutional violation would be tolerable as long as it doesn’t hurt more–the sloppiest, weakest of standards.
Would the Supreme Court be engaged in activism if it struck down state laws that reflect the desires of local citizens to restrict illegal immigrants? As flawed as the Arizona and Alabama versions are—and I think they are poor policy that do more harm than good—it seems that an overrule of them would be just as vulnerable to the activist label, especially given the federal government’s inability to legislate in this area. The examples are infinite, and the one certainty is that the losing side of any high court argument is quick to throw “activism” around and just as quick to discard the charge on a winning day.
It’s particularly hard to condemn activism when Congress has walked right up to the edge of its authority by exercising it in an unprecedented way. The administration itself cites no prior example of the government compelling, at penalty of sanction, a consumer to buy a product; the mandate’s defenders invariably confuse, or dodge, the issue by waxing eloquent about the centrality of healthcare in our economy, or about the economic burden that the voluntarily uninsured leave behind, but the novelty of what the government seeks to do remains. As even a liberal like Ruth Marcus at the Washington Post acknowledges, a court wrestling with that novelty seems less activist and more like an institution doing its job.
-A number of you have asked if I have revised any of my thoughts on Trayvon Martin’s shooting given the slow trickle of new details. While I did caveat my judgment that the shooting was unjust on the facts remaining as they appeared in the early days, I recognize that for my posting at Politico, the editors chose a headline that was unequivocally judgmental. The best I can say is this: it a reasonable bet that the facts will never be known to the point that there are no real doubts, or suspicions and we would all do well to make that concession.
Given that, I wish we would focus more on two elements. First, regardless of who cried for help, struck first, or followed the other, the powder keg in this incident was a concoction of fear: a young black man who felt threatened and disrespected when he was confronted and a non-black man who felt at risk and based that risk on a child’s appearance. The edginess in their encounter is one our society too regularly faces, and while it rarely leads to shootings, it leads all too often to blows and insults that only harden resentments, and arrests and detentions that only deepen anger at authorities. If this indescribably sad event doesn’t move us to consider the cost of our respective racial battle stations, the loss is compounded.
Second, the Florida Stand Your Ground Law is a bad one that needs to be scrapped; whether or not it caused this death, it will cause others if it is not changed. The law, which is more tolerant of a self defense claim than any law like it I have seen, doesn’t just judge behavior: it drives it. Individuals with a gun feel liberated to act like cops and not to wait for the police to arrive; the police who enforce it are inclined to view a shooting as self-defense if the shooter invokes a few buzzwords—“danger”, “suspicious”, “made an aggressive move”, “he hit me first”, etc. On top of that, another weakness of the law is that it likely would have empowered either Trayvon Martin or George Zimmerman to act on their fears that night; the law gives an instant shooting license to the fearful and the threatened at just the moment when their judgment is cloudiest. A law should never make firing a gun so easy.