The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

There was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves.

–Jonathan Swift, Gulliver’s Travels, 1726

The real question before the Supreme Court in the ballyhooed case of King v. Burwell isn’t merely the continuance of the mandated health insurance subsidies of “Obamacare.” It’s whether or not the United States has essentially become a banana republic — an oligarchy whose legal institutions exist to provide ceremonial cover for backroom political power plays.

Almost regardless of what you think of the Affordable Care Act, legalistic chicanery of the kind on display shouldn’t be rewarded. That King v. Burwell has reached the high court is bad enough. Should the Roberts Court hand down a 5-4 decision based upon a tendentious misreading of the statute, several things will happen: An estimated 8.2 million Americans will lose health insurance coverage, the U.S. health care system will be thrown into economic chaos, and a few thousand citizens will no doubt die.

To a certain kind of person styling himself “conservative,” this would be perfectly all right.  In an op-ed titled “End Obamacare, and People Could Die. That’s Okay,” one Michael R. Strain argues that higher death rates are “an acceptable price to pay for certain goals,” including “less government coercion and more individual liberty.”

Acceptable to Strain and his colleagues at the American Enterprise Institute, that is, a plutocrat-funded Washington think tank whose resident “scholars” are handsomely paid to mimic the values of 19th-century Russian aristocrats.

Along with the human casualties, the U.S. Supreme Court’s prestige as a fair arbiter would also be irrevocably damaged. As New York Times legal correspondent Linda Greenhouse argues, “The Court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the Court itself is in peril as a result.”

And that would damage what’s left of American democracy.

During his 2005 confirmation hearings, Chief Justice Roberts likened himself to an umpire. His job would be to call balls and strikes, not to reinvent the rules of baseball. It was a very shrewd formulation, as most Americans prefer a non-partisan judiciary. “It is a very serious threat to the independence and integrity of the courts to politicize them,” Roberts has said repeatedly.

With the signal exception of Citizens United, a 5-4 decision invalidating campaign finance laws and pushing the nation in the direction of plutocracy, some observers do credit the Chief Justice with making an effort to move the Court away from overt partisanship. Almost two-thirds of recent Supreme Court rulings have been unanimous.

However, Roberts’ deciding vote legitimizing Obamacare’s insurance mandate infuriated many Republicans. They see in King v. Burwell an opportunity for the Chief Justice to redeem himself. All he needs to do is persuade a majority of the Justices, presumably including himself, that because the Affordable Care Act speaks of subsidies being available through a health insurance “exchange established by a state,” it means only, exactly, and literally that.

If your state—say, New York—set up and ran its own marketplace, then you’re eligible for Obamacare.

If not, you’re not.

No more health insurance subsidies for residents of Texas, Oklahoma and 32 other states that let the feds set up exchanges for them.

Never mind that the law specifically requires the U.S. Department of Health and Human Services to “establish and operate such exchange[s] within the states.” Never mind that nobody anywhere understood the Affordable Care Act to have such a restrictive meaning when it was being debated, enacted and put into operation. Such an interpretation certainly never came up during the difficult period when the HealthCare.gov website labored to get up to speed.

Never mind too that time-worn Supreme Court precedents direct judges interpreting laws to consider not isolated snippets of language, but “the specific context in which that language is used, and the broader context of the statute as a whole.” (The wording is from a 1997 opinion by Justice Clarence Thomas.)

For that matter, if anybody in Congress on either side thought the law meant what the plaintiff’s lawyers in King v. Burwell claim, why have we been having the political battle of the century about it? Why vote 56 times to repeal a law that only applies in 16 of the 50 states?

It’s an odd form of legalistic fundamentalism the justices must consider, the constitutional equivalent of a guy trying to beat a ticket for driving 95 mph in a school zone because a typo reads “ozone.”

The wonder is that the Court elected to hear the case at all after a three-judge appeals court in Richmond rejected it unanimously.

And the scary question is why?

Photo: Wally Gobetz via Flickr

Advertising

Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

Keep reading... Show less

Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

{{ post.roar_specific_data.api_data.analytics }}